Embed Size (px)
Citation preview
THE SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
CHARTER OF
VIETNAM DAIRY PRODUCTS
JOINT-STOCK COMPANY
(VINAMILK)
Ho Chi Minh City, 19 April 2019
2
TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................................................... 2
INTRODUCTION ................................................................................................................. 5
I. DEFINITION OF TERMS IN THE CHARTER ............................................................ 5
Article 1. Interpretation of terms.................................................................................... 5 II. NAME, FORM, HEAD OFFICE, LEGAL REPRESENTATIVE, BRANCH,
REPRESENTATIVE OFFICE; BUSINESS LOCATION; AND OPERATION TERM
OF THE COMPANY ...................................................................................................... 8
Article 2. Name, Form, Head Office, Legal Representative, Subordinate Units,
Business Location and Operation Term of the Company.............................. 8 III. BUSINESS PHILOSOPHY AND OBJECTIVE; SCOPE OF BUSINESS AND
OPERATION OF THE COMPANY ............................................................................... 8
Article 3. Lines of business, business philosophy and objective of the Company ........ 8 Article 4. Scope of business and operations of the Company ........................................ 9 IV. CHARTER CAPITAL, SHARES AND FOUNDING SHAREHOLDERS ................. 10
Article 5. Charter Capital, Shares and Founding Shareholders ................................... 10 Article 6. Share Certificates and Other Securities Certificates .................................... 11 Article 7. Assignment of Shares .................................................................................. 11
Article 8. Reclamation of Shares ................................................................................. 13 V. MANAGEMENT, CONTROL AND ADMINISTRATION STRUCTURE ................ 14
Article 9. Corporate Governance Structure .................................................................. 14 VI. SHAREHOLDERS AND GENERAL MEETING OF SHAREHOLDERS ................. 14
Article 10. Rights of Shareholders ................................................................................. 14 Article 11. Obligations of Shareholders ......................................................................... 15
Article 12. General Meeting of Shareholders ................................................................ 16 Article 13. Rights and Duties of the General Meeting of Shareholders ........................ 18 Article 14. Proxy ............................................................................................................ 20
Article 15. Change of Rights.......................................................................................... 21 Article 16. Convening the General Meeting of Shareholders, Agenda and Notice of
meeting of the General Meeting of Shareholders ........................................ 21
Article 17. Conditions for conducting a meeting of the General Meeting of
Shareholders and preparation of Minutes of the General Meeting of
Shareholders ................................................................................................ 23 Article 18. Authority and procedures for collection of written opinions in order to pass
a resolution of the General Meeting of Shareholders .................................. 27 Article 18B. Demand for cancellation of resolutions of the General Meeting of
Shareholders ................................................................................................ 28 VII.BOARD OF DIRECTORS ........................................................................................... 29
Article 19. Composition and Term ................................................................................ 29 Article 20. Powers and Duties of the Board of Directors .............................................. 30 Article 21. Chairman of the Board of Directors ............................................................. 33
Article 22. Alternate members of the Board of Directors .............................................. 34 Article 23. Meetings of the Board of Directors ............................................................. 35
Article 23B. Sub- committees of the Board of Directors ................................................ 38 VIII.GENERAL DIRECTOR, OTHER OTHER ENTERPRISE MANAGERS AND
SECRETARY OF THE COMPANY ............................................................................ 40
3
Article 24. Organization of the management apparatus ................................................. 40 Article 25. Other Enterprise Managers .......................................................................... 40 Article 26. Appointment, dismissal, removal, Duties and Powers of the General
Director ........................................................................................................ 40
Article 27. Person in charge of Corporate Governance ................................................. 42 IX. DUTIES OF MEMBERS OF THE BOARD OF DIRECTORS, MEMBER OF
INSPECTION COMMITTEE, THE GENERAL DIRECTOR AND OTHER
ENTERPRISE MANAGERS ........................................................................................ 44
Article 28. Responsibility to be prudent ........................................................................ 44
Article 29. Responsibility to be honest and avoid conflicts of interest.......................... 44 Article 30. Responsibility for loss and compensation.................................................... 46
X. INSPECTION COMMITTEE ....................................................................................... 47
Article 31. Inspection Committee .................................................................................. 47 XI. RIGHT TO INVESTIGATE BOOKS AND RECORDS OF THE COMPANY .......... 47
Article 32. Right to investigate books and records ........................................................ 47 XII. EMPLOYEES AND THE TRADE UNION ............................................................... 47
Article 33. Employees and the Trade Union .................................................................. 47 XIII. PROFIT DISTRIBUTION ......................................................................................... 48
Article 34. Profit distribution ......................................................................................... 48 XIV. BANK ACCOUNTS, RESERVE FUND, FISCAL YEAR AND ACCOUNTING
SYSTEM ....................................................................................................................... 49
Article 35. Bank accounts .............................................................................................. 49
Article 36. Reserve fund ................................................................................................ 49 Article 37. Fiscal year .................................................................................................... 49
Article 38. Accounting system ....................................................................................... 49 XV. ANNUAL REPORTS, RESPONSIBILITY FOR INFORMATION DISCLOSURE
AND PUBLIC ANNOUNCEMENT............................................................................. 49
Article 39. Annual, semi-annual and quarterly financial statements ............................. 49 Article 40. Information Disclosure and public announcement ...................................... 50
XVI. COMPANY AUDIT ................................................................................................... 50
Article 41. Auditing ....................................................................................................... 50
XVII. SEAL ......................................................................................................................... 51
Article 42. Seal .................................................................................................................... 51 XVIII. TERMINATION OF OPERATION AND LIQUIDATION ................................... 51
Article 43. Termination of operation ............................................................................. 51 Article 44. Cases of Deadlock between members of the Board of Directors and
Shareholders ................................................................................................ 51 Article 45. Extension of Operation Term ....................................................................... 52 Article 46. Liquidation ................................................................................................... 52 XIX. INTERNAL DISPUTE RESOLUTION..................................................................... 52
Article 47. Internal dispute resolution............................................................................ 52 XX.CHARTER SUPPLEMENT AND AMENDMENT .................................................... 53
Article 48. Supplement and Amendment of the Charter ................................................ 53
XXI. EFFECTIVE DATE ................................................................................................... 53
Article 49. Effective date ............................................................................................... 53
4
5
INTRODUCTION
This Charter of Vietnam Dairy Products Joint-Stock Company is the legal basis for
all operations of the Company, a joint stock company incorporated and operating
under the Law on Enterprises. This Charter, the resolutions, decisions of the General
Meeting of Shareholders, the resolutions, decisions of the Board of Directors and
other decisions issued by the Company, which have been approved legitimately in
conformity with the relevant laws, will become binding rules and regulations to
conduct the business operations of the Company.
This Charter was approved by the Resolution No.[.]/NQ-CTS.DHDCD/2019 of the
General Meeting of Shareholders on 19 April 2019 (hereinafter referred to as “the
Charter”).
This Charter replaces: (i) the Charter approved by the Shareholders at the General
Meeting of Shareholders for the establishment of the Company held on November
14th, 2003; (ii) the Charter approved by the Shareholders at the General Meeting of
Shareholders held on February 23rd, 2004; (iii) the Charter approved by the
Shareholders at the General Meeting of Shareholders held on December 12th, 2005;
(iv) the Charter approved by the Shareholders at the General Meeting of Shareholders
held on April 24th, 2006; (v) the Charter approved by the Shareholders at the General
Meeting of Shareholders held on September 13th, 2006; (vi) the Charter approved by
the Shareholders at the General Meeting of Shareholders held on March 31st, 2007;
(vii) the Charter approved by the Shareholders at the General Meeting of
Shareholders held on March 28th, 2008; (viii) the Charter approved by the
Shareholders at the General Meetings of Shareholders held on March 31st, 2009; (ix)
the Charter approved by the Shareholders at the General Meeting of Shareholders
held on August 20th, 2009; (x) the Charter approved by the Shareholders at the
General Meeting of Shareholders held on March 27th, 2010; (xi) the Charter approved
by the Shareholders at the General Meeting of Shareholders held on March 25th, 2011;
(xii) the Charter approved by the shareholders at the General Meeting of Shareholders
held on March 23rd, 2012, (xiii) the Charter approved by the Shareholders at the
General Meeting of Shareholders held on 26th April, 2013, (xiv) the Charter approved
by the Shareholders at the General Meeting of Shareholders held on 27th April 2015,
(xv) the Charter approved by the Shareholders at the General Meeting of Shareholders
held on 04th April 2016, (xvi) the Charter approved by the Shareholders at the General
Meeting of Shareholders held on 30th September 2016, (xvii) Charter approved by the
Shareholders at the General Meeting of Shareholders held on 15 April 2017 and
(xviii) Charter approved by the Shareholders at the General Meeting of Shareholders
held on 31st March 2018 .
I. DEFINITION OF TERMS IN THE CHARTER
Article 1. Interpretation of terms
1. In the Charter, the following terms shall be construed as follows:
a. “The Company” defined in this Charter shall be “CÔNG TY CỔ PHẦN
SỮA VIỆT NAM”; the English name of the company shall be: VIETNAM DAIRY
PRODUCTS JOINT-STOCK COMPANY; and abbreviated as VINAMILK.
6
b. "Area of Business" means the geographic scope in which the
production and business operations of the Company shall be carried out, including
areas within and outside the territory of Vietnam.
c. "Charter Capital" means the amount of capital contributed by all
Shareholders and mentioned in Article 5 of this Charter.
d. "The Law on Enterprises" means the Law on Enterprises No.
68/2014/QH13 passed by the National Assembly of Socialist Republic of Vietnam on
November 26th, 2014 taking effect as from July 1st, 2015.
e. “Law of Securities” means the Law on Securities No. 60/2005/QH11
passed by the National Assembly on June 29th, 2006 and took effect as from January
1st, 2007; and the Law amending and supplementing a number of Article of the Law
on Securities No. 62/2010/QH12 passed by the National Assembly on November
24th, 2010.
f. "Managers" mean:
(i) Members of the Board of Directors;
(ii) General Director;
(iii) Other Enterprise Managers, including:
- Executive Directors; and
- Other managerial positions (who is authorized to enter into
transactions of the Company in the name of the Company), as
proposed by the General Director and decided by the Board of
Directors from time to time.
g. "Establishment Date" means the date on which the Company is granted
the Business Registration Certificate (Enterprise Registration Certificate) for the first
time.
h. "Law" means all legal documents stipulated in Article 2 of the Law on
Promulgation of Legal Documents No. 17/2008/QH12 passed by the National
Assembly on June 3rd, 2008 and took effect as from January 1st, 2009.
i. "Related Person" means any individual or organization stipulated in
Clause 17 of Article 4 of the Law on Enterprises, in Clause 34 of Article 6 of the Law
of Securities.
j. “Shareholders" means any individual or organization named in (i) the
Register of Shareholders of the Company; or (ii) a similar document or material
required by the Law of Securities regarding a listed company as an owner of shares.
k. "Operation Term" means the duration of operation of the Company as
stated in Article 2 of this Charter, and can be changed by a resolution passed by the
General Meeting of Shareholders.
l. "Vietnam" means the Socialist Republic of Vietnam.
m. [Intentionally deleted]
n. [Intentionally deleted]
7
o. [Intentionally deleted].
p. “Proxy” means a person who is duly authorized by a Shareholder to
attend and vote at a meeting of the General Meeting of Shareholders.
q. “Branch” means a dependent unit of the Company, duly established
within the territory of Vietnam, having the task of performing all or a number of the
functions of the Company, including the function of an authorized representative. The
lines of business of the branch must conform with the lines of business of the
Company.
q1. “Representative office” means a dependent unit of the Company,
having the task of acting as the authorized representative in the interests of the
Company and protecting such interests.
q2. “Business Location” means the location organized to implement
specific business operations of the Company. Business Location may be outside the
registered address of the head office.
q3. “Subsidiary” means an enterprise in one of the following cases: (a) the
Company holds over fifty per-cent (50%) of the charter capital of or total ordinary
shares already issued by such enterprise; (b) the Company has the right to control
such enterprise through: (i) direct or indirect right of appointment of a majority or all
of members of the Board of Directors, the Directors or the General Director of such
enterprise; (ii) to decide on amendment and supplement to the Charter of such
enterprise; and (iii) other rights under the Law on Enterprises.
q4. “Subordinate Units” include Branches, Representative Offices,
Business Locations and Subsidiaries.
r. “Regulations on Corporate Governance” means the internal rules on
corporate governance formulated and submited by the Board of Directors to the
General Meeting of Shareholders to pass in order to stipulate the operation and
management of the Company in accordance with the legislations time by time.
s. “Audit Committee” means the internal audit body under the Board of
Directors as stipulated in Point b, Clause 1, Article 134 of the Law on Enterprises.
t. “Person in charge of Corporate Governance” shall have the meaning as
given to it in Article 27 of this Charter.
2. In this Charter, any article or document referred to will include any
amendment and supplement or any replacing document of such article or document.
3. Headings (chapters, Article of the Charter) are used herein for
convenience only, and do not affect the nature of the content and structure of the
Charter.
4. Words or terms defined in the Law on Enterprises, the Law of
Securities (if they do not contradict the subject or context) will have the same
meanings in this Charter.
8
II. NAME, FORM, HEAD OFFICE, LEGAL REPRESENTATIVE,
BRANCH, REPRESENTATIVE OFFICE; BUSINESS LOCATION;
AND OPERATION TERM OF THE COMPANY
Article 2. Name, Form, Head Office, Legal Representative, Subordinate
Units, Business Location and Operation Term of the Company
1. The legal name of the Company in Vietnamese shall be “Công ty Cổ
phần Sữa Việt Nam”. The name of the Company in English shall be “Vietnam Dairy
Products Joint-Stock Company”. The abbreviated name shall be “Vinamilk”. The
Company shall be a shareholding company having legal entity status in compliance
with applicable law of Vietnam.
2. The Company was established in form of converting from a State-
owned enterprise to a joint-stock company, and shall be organized and operated in
accordance with the Law on Enterprises. Accordingly, the Company shall have its
legal entity status as from the Establishment Date and Shareholders shall only be
liable for debts and other property obligations of the Company within the amount of
capital that they have contributed to the Company.
3. The Company’s registered head office shall be:
Address: 10 Tan Trao Street, Tan Phu Ward, District 7, Ho Chi Minh City.
Telephone: (8428) 541 5555
Fax: (8428) 541 61226
Email: [email protected]
Website: www.vinamilk.com.vn
4. The General Director shall be the Legal Representative of the
Company.
5. The Company may establish Subordinate Units; may implement
division, separation or conversion of the Subordinate Units in the Area of Business
to implement the Company’s operational objectives in accordance with the Law and
the Charter.
6. Except for early termination of the Operation Term in accordance with
Article 43.2 and 44, or extension of the Operation Term in accordance with Article
45, the Operation Term shall be fifty (50) years, commencing from the Establishment
Date.
III. BUSINESS PHILOSOPHY AND OBJECTIVE; SCOPE OF BUSINESS
AND OPERATION OF THE COMPANY
Article 3. Lines of business, business philosophy and objective of the
Company
1. Lines of business of the Company shall be: Retailing food products in
specialized stores (Details: Retailing sugar, milk and dairy products, cakes, jam,
candies, and other products made of food grains, powder, starch in specialized stores;
Retailing other food products specialized stores); Retailing beverages in specialized
9
stores (Retailing alcoholic and non-alcoholic beverages in specialized stores
(beverages which are not for use at stores) such as: Retailing alcoholic beverages:
brandy, wine, beer; Retailing non-alcoholic beverages: soft drinks with sugar, gas or
no gas, such as: Cola cola, Pepsi cola, orange, lemon or other fruit juice…; Retailing
natural mineral water or other pure water contained in sealed bottle; Retailing wine
and beer with low alcohol content or no alcohol); Wholesaling food (Details:
Wholesaling cakes, canned milk, powdered milk, nutrition powder and other dairy
products. Wholesaling in processed food, drinking tea, roasted-grinded-filtered-
dissolved coffee. Wholesaling sugar (not operated at the head office)); Wholesaling
beverages (Details: Wholesaling soymilk, beverages, alcohol, beer, drinks);
Producing various types of pastry from flour (Details: pastry production); Breeding
cattle such as: buffalos and cows (Details: breeding); Processing milk and dairy
products (Details: Producing canned milk, powdered milk, nutrition powder and other
dairy products); Warehousing and commodity storage (Details: Business in
warehouses and yards); Combined cultivation and breeding (Details: cultivation and
breeding); Cargo road transportation (Details: business in cargo road transportation
by cars to support the production and goods consumption of the Company);
Conducting business in real-estate, land use rights of owners, users or leased land
(Details: Activities as regulated under Article 11.3 of the Law on Real-Estate
Business 2014); Producing non-alcoholic beverages and mineral water (Details:
Producing drinks, beverages, soymilk); Activities of general medical, specialized
medical and dental clinics (Details: polyclinics); Growing other annual plants and
crops (Details: growing trees and plants); Producing other uncategorized chemical
products (Details: business in chemicals (excluding those that are strongly
hazardous)); Other uncategorized production (Details: business in raw materials,
production of alcohols, packages, plastic goods); Producing other un-categorized
foodstuffs (Details: business in technology foods, producing processing foods,
drinking tea, roasted/grinding/filtered/dissolved coffee); Producing other electric
equipment (Details: trading, producing equipment, accessories, supplies); Producing
beer and malting and fermenting beer (Details: producing beer); Other specialized
wholesales (Details: selling and purchasing packages, plastic goods).
2. Business Philosophy and objective of the Company shall be to
continually develop production, trading and service operations in its fields of business
activities in order to: maximize possible profits of the Company for the Shareholders,
to enhance the value of the Company; and to constantly improve the living standards,
working conditions and income of its employees. In addition, the Company is
committed to ensure the benefits of other stakeholders, aiming toward sustainable and
responsible development.
Article 4. Scope of business and operations of the Company
1. The Company shall be permitted to plan and carry out all business
activities in accordance with the provisions of the Charter in compliance with the
Law and shall be permitted to take appropriate measures to achieve the objectives of
the Company.
2. The Company may carry out business operations in other sectors
permitted by the Law and approved by the General Meeting of Shareholders.
10
IV. CHARTER CAPITAL, SHARES AND FOUNDING SHAREHOLDERS
Article 5. Charter Capital, Shares and Founding Shareholders
1. The Company’s Charter Capital shall be VND 17.416.877.930.000 (In words:
Seventeen thousand four hundred sixteen billion eight hundred seventy seven million
nine hundred thirty thousand Vietnamese dong).
The par value of each share shall be VND 10,000 (ten thousand Vietnamese
dong)/share. The total number of shares of the Company shall be calculated by
dividing the Company’s Charter Capital by the par value of each share.
2. All shares issued by the Company on the approving date of this Charter
shall be ordinary shares. The rights and obligations attached to such ordinary shares
shall be stipulated in Article 10 of this Charter.
3. Names, addresses, numbers of shares and other details of the founding
shareholders as stipulated by the Law on Enterprises will be mentioned in the
Appendix attached hereto. The Appendix shall be an integral part of the Charter.
4. The Company may only increase its Charter Capital upon approval of
the General Meeting of Shareholders in accordance with the Law.
5. The Company may issue preference shares after having the approval of
the General Meeting of Shareholders and in accordance with the provisions of the
Law.
6. The Company may issue shares at a price which can be paid in
instalments. The maturity of such instalments and the sum to be paid on a periodical
basis must be determined upon the issuance of shares.
7. New ordinary shares intended to be issued shall be given priority to be
offered for sale to existing Shareholders in proportion to the number of ordinary
shares of each Shareholder in the Company, unless otherwise decided by the General
Meeting of Shareholders. The Company must give a notice of offering which
specifies the number of shares to be offered for sale and a reasonable time-limit (not
less than twenty one (21) days or other time-limit under the Law) so that Shareholders
can order for subscription. The number of remaining shares not subscribed to be
purchased by such Shareholders shall be decided by the Board of Directors. The
Board of Directors may allocate the shares to subjects in accordance with the
conditions and in a manner that the Board of Directors deems appropriate, provided
that the shares may not be sold on conditions which are more favourable than the
conditions offered to the existing Shareholders, unless the shares are sold via the
Stock Exchange by auction method.
8. The Company may purchase its own shares in any way permitted in the
Charter and applicable Law. The shares acquired by the Company shall be treasury
stocks and the Board of Directors may offer in ways in consistency with the
provisions of this Charter, the Law of Securities and relevant guiding documents.
9. The Company may issue other types of securities as approved by the
General Meeting of Shareholders and in accordance with the provisions of the Law.
11
Article 6. Share Certificates and Other Securities Certificates
1. Ordinary share certificates of the Company must have the primary
contents as stipulated in Clause 1, Article 120 of the Law on Enterprises.
Preference share certificates (if any) of the Company require other respective
contents as stipulated in Article 116, Article 117 and Article 118 of the Law on
Enterprises.
2. Shareholders of the Company shall be granted with share certificates
corresponding to the number of shares and class of shares owned.
Share certificates must bear the seal of the Company and the signature of the
Legal Representative of the Company. Share certificate must specify the number and
class of shares held by Shareholders, the full name of the holder and other information
under the provisions of the Law on Enterprises.
3. Any one whose name is recorded in the Register of Shareholders holds
at least one (01) shares of any class shall be granted, free-of-charge a certificate (if
issued) within two (02) months (or a longer period as stipulated by the terms of
issuance) after the purchase or assignment (if assigned).
4. In case where only a number of named shares in a named share
certificate shall be assigned, such share certificate will be rescinded and one (01) new
share certificate recording the remaining shares will be granted free-of-charge.
5. Where a share certificate has been damaged, erased, lost, stolen or
destroyed, the shareholder of those share certificates may request for new issuance of
share certificate, provided that he/she must present evidence of the ownership of
shares and pay all relevant expenses for the Company in accordance with the decision
of the Board of Directors.
6. Owners of anonymous share certificates shall be solely responsible for
preserving their share certificates and the Company will not be responsible in any
case where these certificates are stolen or used for illegal purposes.
7. Bonds or other securities certificates of the Company (excluding sale
offer letters, temporary certificates and similar documents) will be issued with the
seal and signature of the Legal Representative of the Company.
8. Within the framework of the Law and securities market, the Company
may issue named shares which shall not take the form of certificates, and allow the
shares (regardless of whether being issued in this form or not), to be assigned and a
document on such assignment shall not necessarily be required; or the Board of
Directors may, from time to time, issue other regulations replacing respective
regulations in this Charter regarding share certificates and assignment of shares.
Article 7. Assignment of Shares
1. All shares may be assigned freely unless otherwise stipulated by this
Charter and the Law. All share certificates listed at the Stock Exchange shall be
assigned in accordance with the regulations of the State Securities Commission and
the Stock Exchange.
12
2. Assignments of named shares shall be conducted (i) in writing by
normal method; (ii) by hand delivery of share certificates; or (iii) in any other way
which may be acceptable to the Board of Directors. Listed shares must be assigned
via the Stock Exchange in accordance with the regulations and rules of the State
Securities Commission and the Stock Exchange. Assignment documents must be
signed by the assignor and the assignee (except where the shares are paid in full). The
assignor shall remain the owner of the relevant shares until the name of the assignee
is registered in the Register of Shareholders, except for the case where a meeting of
the General Meeting of Shareholders takes place during that time, in which case the
assignee shall have the right to attend the meeting of the General Meeting of
Shareholders in place of the assignor for the assigned shares as stipulated in the Law
on Enterprises.
3. Employees and farmer households which own a number of shares
purchased at preferential prices shall have the right to bequeath and other rights of
Shareholders in accordance with the Law and this Charter. Share certificates of this
class of shares shall be named share certificates and may only be assigned after three
(3) years from the purchase date thereof. In special cases where these shares shall be
needed to be assigned prior to the expiration of the above-mentioned time-limit, an
approval from the Board of Directors of the Company must be obtained and the
Company shall be given priority to buy back the shares at market price at the selling
time.
4. Employees of the Company owning shares purchased by deferred
payment at preferential prices (the payment thereof may be deferred for the first three
years and then gradually made within a maximum period of the following seven years
without interest), and after full payment of the outstanding amount, then shall be
freely permitted to assign the shares and shall not be subject to any restrictions on the
time for which they hold the shares, except for the case of Founding Shareholders
who have to perform in accordance with this Charter.
5. Within three (03) years from the Establishment Date, Founding
Shareholders must jointly hold at least twenty percent (20%) of the total ordinary
shares which are transferable, and if these shares are assigned to persons who are not
Founding Shareholders, an approval of the General Meeting of Shareholders in the
Company must be obtained. Shareholders who intend to assign their shares shall not
have the right to vote on the assignment of such shares.
6. Founding Shareholders shall not be allowed to withdraw from their
status as member of the Company for the first two (02) fiscal years of the Company.
Termination of status as member must be proposed in writing and sent to the Board
of Directors by registered mail. In this case, the remaining Founding Shareholders
shall have the priority right to subscribe the shares of the above Founding
Shareholders in proportion to the number of shares they own.
7. The Board of Directors shall have the sole right to refuse to register the
assignment of any named share for which has not yet been paid in full. Shares which
have not yet been fully paid shall not be permitted to be assigned or entitled to
dividends.
13
Registration procedures for share assignment shall be stipulated in a specific
document or in issuance plan by the Board of Directors.
8. In the event of the death, the loss of capacity for civil act, or the
restriction of capacity for civil acts of an individual Shareholder, the heirs or
executors of the deceased Shareholder will be the only person or persons recognized
by the Company to have the rights to or inherit benefits of the shares. However, this
provision shall not mean that the deceased Shareholder shall be exempted from any
obligations attached to any shares held by that person.
Article 8. Reclamation of Shares
1. If a Shareholder fails to pay in full and on time the amount payable for
the subscription of shares, the Board of Directors may, at any time, send a notice to
the Shareholder to request for payment of such amount, together with any accrued
interest which may be accumulated on the amount, and costs arising from any failure
to pay such amount to the Company.
2. The above-mentioned notice must specify a new time-limit for payment
(at least seven (07) days from the date on which the notice is sent), place for payment,
and clearly state that in the event that payment is not made as required, the shares
which have not yet been fully paid for will be reclaimed.
3. If the requirements stipulated in any of the above-mentioned notices are
not fulfilled, the Board of Directors may reclaim all shares mentioned in such notice
at any time before all amounts payable, interest and related costs are paid for in full.
This reclamation also includes all announced dividends to be paid on the reclaimed
shares which have not yet been actually paid out at the time of reclamation.
4. Shares reclaimed are considered the shares offered for sale. The Board
of Directors may directly execute or authorize the sale, redistribution or settlement
for people whose own shares reclaimed or other subjects under the conditions and
ways which the Board of Directors may think fit.
5. A Shareholder who holds shares which are reclaimed must waive his or
her Shareholdership status with respect to such shares, but must bear the
responsibility to pay to the Company all amounts related to such shares payable to
the Company at the time of reclamation, plus proportional interest at the rate (not
exceeding interest rate announced by the State Bank at the time of reclamation) in
accordance with a decision of Board of Directors, from the date of reclamation to the
date of payment. The Board of Directors shall have the full power to implement the
deduction measures or request the competent State authorities to impose coercive
measures of reclamation in accordance with provisions of the Law or to make
remission of part or all of such amounts.
6. A reclamation notice shall be sent to the shareholders holding reclaimed
shares prior to the time of reclamation. The reclamation shall be still valid even in
case of error or negligence in sending notice.
14
V. MANAGEMENT, CONTROL AND ADMINISTRATION STRUCTURE
Article 9. Corporate Governance Structure
The corporate governance structure of the Company comprises:
a. General Meeting of Shareholders;
b. Board of Directors; and
c. General Director.
VI. SHAREHOLDERS AND GENERAL MEETING OF SHAREHOLDERS
Article 10. Rights of Shareholders
1. Shareholders shall be the owners of the Company and shall have rights
and obligations corresponding to the number and classes of shares owned by them.
The Shareholders shall only be liable for the debts and other property obligations of
the Company to the extent of the amount of capital they have contributed to the
Company.
2. A person who holds ordinary shares shall have the following rights:
a. to attend and express opinions at the General Meeting of Shareholders
and to exercise the right to vote directly at the General Meeting of Shareholders or
through a proxy or by a remote vote;
b. to receive dividends at the rate decided by the General Meeting of
Shareholders;
c. to freely assign shares which have been paid for in full in accordance
with this Charter and the applicable Law;
d. to be given priority in subscribing for new shares offered for sale in
proportion to the number of ordinary shares each shareholders holds in the Company;
e. to check information relating to each Shareholder in the list of
Shareholders who are qualified to attend the General Meeting of Shareholders and to
request amendment of incorrect information; to consult or copy of the Charter of the
Company, the book of minutes of meetings of the General Meeting of Shareholders
and resolutions of the General Meeting of Shareholders published on the website of
the Company.
f. If the Company is dissolved, to receive a part of the remaining assets in
proportion to the number of shares they own after the Company has paid out the debts
and obligations and the shareholders holding preference shares;
g. to request the Company to redeem shares in the cases stipulated in
Clause 1 Article 129 of the Law on Enterprises; and
h. other rights stipulated in this Charter and by Law.
3. A Shareholder or a group of Shareholders holding more than five
percent (5%) of the total ordinary shares for six (06) consecutive months or more
shall have the following rights:
15
a. to stand for election of or nominate candidates to the Board of Directors
in accordance with Clause 2 Article 19 of this Charter;
A groups of Shareholders when implementing the rights stipulated at Point
3.a of this Article shall be liable for submitting documents from a securities company
(or corresponding other documents accepted by the Company) certifying the number
of shares, the ratio of shares, time of shares holding to prove the satisfaction of all
corresponding conditions above.
b. to request the Board of Directors to convene a General Meeting of
Shareholders in accordance with Article 114 and Article 136 of the Law on
Enterprises;
c. (i) to inspect and (ii) receive a copy or an extract of the list of
Shareholders entitled to attend and vote at a meeting of the General Meeting of
Shareholders after each meeting;
d. to request the Board of Directors to inspect each particular issue
relating to the management of the Company’s operation whenever necessary. The
request must be made in writing and must contain the full name, permanent address,
nationality, number of people’s identity card, passport or other lawful personal
identification in respect of a Shareholder being an individual; or the name, permanent
address, nationality, number of establishment decision or number of enterprise
registration in respect of a Shareholder being an organization; number of shares and
date of registration of shares of each Shareholder, total number of shares of the group
of Shareholders and the percentage of ownership of the total number of shares of the
Company; issues to be inspected and purpose of the inspection. In this case, the
inspection shall be directly carried out and reported by the Audit Committee.
e. Other rights stipulated in this Charter and other provisions of the Law.
Article 11. Obligations of Shareholders
1. A Shareholder shall have the following obligations:
a. to comply with this Charter and the Regulations on Corporate
Governance; to observe resolutions of the General Meeting of Shareholders and
decisions of the Board of Directors;
b. to attend meetings of the General Meeting of Shareholders and to
exercise the voting right in person or via a Proxy or by a remote vote. The
Shareholder may authorize a member of the Board of Directors to act as his/her Proxy
at the meeting of the General Meeting of Shareholders;
c. to pay for shares according to the number of shares which the
Shareholder has registered to subscribe in accordance with the procedures and
regulations; and to be liable for debts and other property obligations of the Company
in proportion to the capital amount contributed to the Company; not to withdraw the
capital contributed as ordinary share from the Company in any form;
d. to provide the correct address when registering to subscribe for shares;
e. to fulfill other obligations in accordance with applicable law; and
16
f. to bear personal responsibility where he/she performs one of the
following acts in any form in the name of the Company:
f1. Breaching the Law;
f2. Conducting business and other transactions for the personal benefit of
himself/herself or other organizations or individuals;
f3. Paying premature debts where the Company is likely to be in financial
danger.
g. To bear personal liability for expenses when directly requesting or
joining requests to convene meeting of General Meeting of Shareholders with
unsuitable reasons.
2. Obligations of major Shareholders
a. A major Shareholder shall be a Shareholder owning directly or
indirectly five percent (05%) or more of the voting shares of the Company.
Any organization or individual which becomes a major Shareholder of the
Company must report to the Company, the State Securities Commission and the Stock
Exchange where the shares of the Company are listed within seven (07) days from
the date of becoming a major Shareholder.
b. A report on ownership by a major Shareholder shall contain the
following particulars:
b.1. In case of a major Shareholder being an organization, the name, address
and business line of the major Shareholder; in case of a major Shareholder being an
individual, the full name, age, nationality, residence and profession of the major
Shareholder;
b.2. The number of shares and the percentage of shares which such
Shareholder owns, or owns jointly with other organizations and individuals,
compared to the total number of currently outstanding shares.
c. If there is an important change in the information in the report stipulated
in Clause (b) above, or if there is a change in the number of shares owned in excess
of one percent (01%) of the number of shares of the same class currently in
circulation, then within seven (07) days from the date of such change, the major
Shareholder must submit a amendment or supplement report to the Company, the
State Securities Commission and the Stock Exchange where the shares of the
Company are listed.
d. Points (a), (b) and (c) above shall also apply to any group of related
persons owning five percent (05%) or more of the voting shares of the Company.
Article 12. General Meeting of Shareholders
1. The General Meeting of Shareholders shall be the highest competent
authority of the Company and all Shareholders with voting rights shall be allowed to
participate therein. The annual meeting of the General Meeting of Shareholders shall
be organized once every year and must be hold within four (04) months from the end
of a fiscal year; this period of time may be extended for another period but not
17
exceeding six (06) months from the end of the fiscal year if approved by the Authority
issuing the Enterprise Registration Certificate at the request of the Board of Directors.
2. The annual meeting of the General Meeting of Shareholders shall be
convened and organize by the Board of Directors at any place in Vietnam. The annual
meeting of the General Meeting of Shareholders shall make decisions on issues
stipulated by the Law and this Charter, especially the annual financial statements and
the budgets of the Company for the next fiscal year. Independent auditors shall be
invited to any general meeting to provide advice for the approval of annual financial
statements.
3. The Board of Directors must convene an extraordinary meeting of the
General Meeting of Shareholders in the following cases:
a. The Board of Directors considers that it is necessary to do so in the
interests of the Company. Convening a meeting is necessary if independent auditors
believe it is important to discuss audit reports or the financial situation of the
Company and the Board of Directors thinks so.
b. The annual balance sheet, semi-annual or quarterly statements or the
audit reports of a fiscal year reflects the loss of half of the equity capital in comparison
with the one at the beginning of the same period.
c. When the number of the Board of Directors’ members, the number of
independent members of the Board of Directors is less than the number of members
required by law or the number of the Board of Directors’ members is reduced more
than one third (1/3) compared to the Charter’s regulations.
d. A Shareholder or group of Shareholders stipulated in Article 10.3.b of
this Charter request the convening of the General Meeting of Shareholders by a
written proposal which must clearly state the reason thereof and the purpose of the
meeting, and must be signed by all the related Shareholders (the written proposal may
be made in multiple copies, each of which must be signed by all related Shareholders),
and
e. Other cases as stipulated by the Law and this Charter.
4. Responsibility to convene an extraordinary meeting of the General
Meeting of Shareholders:
a. The Board of Directors must convene a meeting of the General Meeting
of Shareholders within thirty (30) days from the date when the number of members
of the Board of Directors shall not satisfy the provision stipulated in Clause 3(c) of
this Article or from the date of receipt of a the request stated in Clause 3(d) or Clause
3(e) of this Article.
b. Where the Board of Directors fails to convene a meeting of the General
Meeting of Shareholders mentioned above, then within the next thirty (30) days, the
requesting Shareholder or groups of Shareholders as stipulated in Clause 3(d) of this
Article shall have the right to convene a meeting of the General Meeting of
Shareholders. In this case, the Shareholder or group of Shareholders convening the
meeting of the General Meeting of Shareholders, if they consider it necessary, shall
18
have the right to request the Enterprise Registration Certificate Issuing Body or other
competent bodies in accordance with the Law to supervise the formality and
procedures for convening and conducting a meeting and making decisions of the
General Meeting of Shareholders.
d. The convenor of a meeting of the General Meeting of Shareholders
must prepare a list of Shareholders entitled to attend a meeting of the General Meeting
of Shareholders, provide information and deal with complaints relating to the list of
Shareholders, prepare the agenda of the meeting, prepare documents, determine the
time and venue of the meeting, and send a notice of invitation to the meeting to each
Shareholder entitled to attend the meeting.
5. All expenses for convening and conducting a meeting of the General
Meeting of Shareholders shall be reimbursed by the Company. Such expenses shall
not include expenses born by the shareholders for attending the General Meeting of
Shareholders, including travel and accommodation costs.
Article 13. Rights and Duties of the General Meeting of Shareholders
1. The General Meeting of Shareholders in an annual meeting shall have
the right to discuss and approve the following issues:
a. audited annual financial statements;
b. Reports of the Board of Directors; and
c. Development orientation of the Company.
2. The General Meeting of Shareholders in an annual and extraordinary
meeting shall make decision by way of passing resolutions on the following matters:
a. Annual financial statements;
b. Annual dividends ratio for each class of shares in compliance with the
Law on Enterprises and the rights attached to such class of shares. Such dividends
ratio must not be higher than the rate proposed by the Board of Directors after
consulting the Shareholders at the meeting of the General Meeting of Shareholders;
c. Number of members of the Board of Directors;
d. Selection of independent auditing organizations;
e. Election, dismissal, removal and replacement of members of the Board
of Directors;
f. Total remuneration of the members of the Board of Directors and
reports on remuneration of the Board of Directors;
g. Policies of paying remuneration for the members of the Board of
Directors;
h. Supplement to and amendment of the Company Charter;
i. The business line of the Company;
19
j. Decision on change of Charter Capital of the Company, including the
decrease of Charter Capital;
k. Classes of shares and number of newly issued shares for each class of
shares;
l. Division, separation, consolidation, merger or conversion of the
Company;
m. Re-organization and dissolution (liquidation) of the Company and
appointment of liquidators.
n. Inspection of and dealing with breaches by the Board of Directors
which cause loss and damage to the Company;
o. Decision on investment or transactions of sales of assets of the
Company or its Subordinate Units or on purchase transactions with a value equal to
or more than thirty five percent (35%) of total value of the assets of the Company and
its Subordinate Units recorded in the most recent audited financial statements;
p. Redemption of ten percent (10%) or more of any one class of issued
shares by the Company;
q. the Chairman of the Board of Directors concurrently acts as the General
Director;
r. The Company or any Subordinate Unit of the Company enters into a
contract with any person stipulated in Clause 1 Article 162 of the Law on Enterprises
with a value of twenty percent (20%) or more of the total value of assets of the
Company and its Subordinate Units recorded the most recent audited financial
statements.
s. Issuance of bonds, bonds convertible into shares, and securities rights
which allow the owner to purchase shares at a pre-determined price.
t. To make decision on the number of the legal representative(s) of the
Company.
u. Other issues as stipulated in this Charter and other regulations of the
Company.
3. A Shareholder shall not be permitted to vote for any resolution to
approve:
a. Contracts, transactions stipulated in Article 13.2 of this Charter when
such Shareholder or a Related Person of such Shareholder shall be a contracting party;
or
b. Redemption of shares by such Shareholder or a Related Person of such
Shareholder, except where such redemption is implemented on the basis of the ratio
of ownership of all Shareholders or such redemption is implemented via order
matching or public offer on the Stock Exchange.
4. All resolutions and matters included in the agenda must be discussed
and voted at the General Meeting of Shareholders.
20
Article 14. Proxy
1. [Intentionally deleted]
2. Shareholders entitled to attend the General Meeting of Shareholders in
accordance with the Law shall directly attend or authorize person or organization to
attend (the ”Proxies”). A Proxy shall not be required to be a Shareholder.
3. A file for appointment of a Proxy must be made in writing on the
standard form of the Company or another form approved by the Board of Directors
and must be signed in accordance with the following provisions:
a. If an individual Shareholder is the principal, the power of attorney must
be signed by such Shareholder and the Proxy (or the legal of the Proxy if the Proxy
is an organization);
b. If a Shareholder being an organization is the principal, the power of
attorney must be signed by the legal representative or the authorized representative
of the Shareholder and the Proxy (or the legal representative of the Proxy if the Proxy
is an organization).
Any Proxy to attend the General Meeting of Shareholders must submit the
written power of attorney prior to entering the meeting room.
4. Where a lawyer on behalf the principal signs a written letter of
appointment of a representative, the appointment of such representative in this case
shall be deemed to be effective only if such written letter of appointment is presented
together with the power of attorney authorizing the lawyer or with a valid copy of
such power of attorney (if it was not registered with the Company). If this is not
implemented, the appointment of the Proxy will be deemed to be invalid.
5. Except for the case stipulated in Clause 4 of this Article, the voting
form of a Proxy within the scope of authorization shall remain effective even in any
one of the following cases:
a. The principal died, or his capacity for civil acts is lost or is restricted;
b. The principal has rescinded the appointment of authorization; or
c. The principal has rescinded the authority of the person carrying out the
authorization.
However, this Clause shall not be apply in a case where the Company
receives a notice of one of the above cases within twenty four (24) hours prior to the
time of opening of the meeting of the General Meeting of Shareholders or prior to
the time the meeting is reconvened.
6. All restrictions of the Shareholders on the Authorized Representative with
respect to the performance of the rights and obligations of the respective Shareholders
at the General Meeting of Shareholders shall have no legal validity in respect of a
third party.
21
Article 15. Change of Rights
1. The change or cancellation of any special right attached to a class of
preference shares shall take effect when such change or cancellation shall be
approved by the Shareholders holding at least sixty five percent (65%) of ordinary
shares who are in attendance and concurrently approved by the Shareholders holding
at least seventy five percent (75%) of voting rights of the above class of preference
shares.
2. The organization of a meeting of the Shareholders holding one class of
preference shares to approve the above change of rights shall be valid if at least two
(2) Shareholders (or their proxies) are present and hold at least one-third of the par
value of the issued shares of such class. Where the number of attendees as required
above is insufficient, the meeting shall be re-organized within a period of thirty (30)
days after that and the persons holding shares of such class (not depending on the
number of attendees and the number of shares) who are present directly or via proxies
shall be deemed to constitute the quorum. At the meeting of the persons holding
preference shares mentioned above, the persons holding shares of such class who are
present in person or via proxies may request a secret ballot. Each share of the same
class shall have the equal voting rights at the meeting mentioned above.
3. The procedures for conducting such a separate meeting shall be
implemented in the same way as stipulated in Article 17 and 18 of this Charter.
4. Unless otherwise stipulated in the terms of issue of shares, special rights
attached to various classes of shares with preference rights in respect to some or all
issues relating to the distribution of profits or assets of the Company shall not be
changed when the Company issues additional shares of the same class.
Article 16. Convening the General Meeting of Shareholders, Agenda and
Notice of meeting of the General Meeting of Shareholders
1. The Board of Directors will convene a meeting of the General Meeting
of Shareholders, except in the cases stipulated in Article 12.4.b or 12.4.c of this
Charter.
2. The convenor of a meeting of the General Meeting of Shareholders
must carry out the following duties:
a. prepare a list of all Shareholders satisfying all conditions for attending
and vote at the meeting of the General Meeting of Shareholders; agenda and
documents as stipulated in accordance with Law and the regulations of the Company.
The list of Shareholders shall be prepared not earlier than ten (10) days prior to the
date on which the notice of invitation to the meeting of the General Meeting of
Shareholders is sent;
b. determine time and venue of the meeting of the General Meeting of
Shareholders;
c. inform and send a notice of the meeting of the General Meeting of
Shareholders to all Shareholders entitled to attend the meeting;
22
d. draft resolutions of the General Meeting of Shareholders in accordance
with the matters proposed to be discussed at the meeting; and
e. Other work to serve the General Meeting of Shareholders.
3. The notice of a meeting of the General Meeting of Shareholders shall
be sent to all Shareholders, and at the same time shall be published on the media
means of the State Securities Commission and of the Stock Exchange and on the
website of the Company. Such notice must be sent at least ten (10) days prior to the
date of the meeting of the General Meeting of Shareholders, calculated from the date
on which the notice is validly sent or delivered, the date on which the postal charge
is paid, or the date on which the notice is put in the mailbox. The agenda of the
meeting of the General Meeting of Shareholders and documents relating to the
matters to be voted at the meeting shall be sent to the Shareholders and/or published
on the website of the Company. In the case where no document is attached with the
notice of the meeting of the General Meeting of Shareholders, the notice inviting to
the meeting must specify the website address in order to enable the Shareholders to
access such documents, which include:
a. The meeting agenda and data to be used at the meeting;
b. List and detailed information about each candidate if electing members
to the Board of Directors;
c. Voting cards;
d. Sample form for appointing an authorized representative to attend the
meeting; and
e. Draft resolutions on each matter on the agenda.
4. A Shareholder or group of Shareholders referred to in Article 10.3 of
this Charter shall have the right to propose any issue to be included in the agenda of
a meeting of the General Meeting of Shareholders. The proposal must be made in
writing and sent to the Company at least three (03) business days before the opening
day of the meeting of the General Meeting of Shareholders. The proposal must
contain full names of the Shareholders, number and classes of shares held by them,
and the issues proposed to be included in the agenda.
5. The convenor of the General Meeting of Shareholders will only have
the right to reject any proposal mentioned in Clause 4 of this Article in the following
cases:
a. The proposal was not sent on time;
b. At the time of the proposal, the Shareholder or group of Shareholders
does not own at least five percent (5%) of the ordinary shares for six (06) consecutive
months or more;
c. The proposal does not contain the necessary information is stipulated
in Clause 4 of this Article; and
d. The proposed issues do not fall within the authority of the General
Meeting of Shareholders for discussion and approval;
23
6. The Board of Directors must prepare the draft resolutions for each issue
on the agenda.
7. In case where all Shareholders representing one hundred per cent
(100%) of the voting shares attending the meeting of the General Meeting of
Shareholders directly or via Proxies, any decision which is unanimously approved by
the General Meeting of Shareholders shall be deemed to be valid even if the meeting
of the General Meeting of Shareholders was not convened in accordance with the
formality and procedures, or the issues voted are not included on the agenda.
Article 17. Conditions for conducting a meeting of the General Meeting of
Shareholders and preparation of Minutes of the General Meeting of
Shareholders
1. The Chairman of the Board of Directors shall act as Chairman of all
meetings of the General Meeting of Shareholders convened by the Board of Directors.
In case where the Chairman is absent or is temporarily unable to work, then the
remaining members of the Board of Directors shall elect one of them to act as the
Chairman of the meeting. In other cases, the person who signed the document
convening the General Meeting of Shareholders shall arrange for the General Meeting
of Shareholders to elect a Chairman of the Meeting and the person with the highest
number of votes shall act as the Chairman of the meeting. In the event of election of
a Chairman, the name of the elected Chairman and the number of votes for the
Chairman must be announced.
The Chairman of the Board of Directors as chairman or the elected chairman
of the General Meeting of Shareholders shall nominate someone to act as secretary
to prepare minutes of the General Meeting of Shareholders.
2. Except for the case stipulated in Clause 3 of this Article, resolutions of
the General Meeting of Shareholders must be passed by a majority of Shareholders
representing at least sixty five percent (65%) of the total votes of the Shareholders
with voting rights who are present in person or via their Proxies at the meeting of the
General Meeting of Shareholders.
3. Resolutions of the General Meeting of Shareholders on amendment of
and supplement to the name of the Company, including (i) the name of the Company
in Vietnamese; (ii) the name of the Company in English and (iii) the abbreviated
name as stipulated in Clause 1, Article 2 of the Charter must be passed by a majority
of Shareholders representing at least eighty five percent (85%) of the total votes of
the Shareholders with voting rights who are present in person or via their Proxies at
the meeting of the General Meeting of Shareholders (in case the meeting is held
directly), or at least eighty five percent (85%) of the total votes of the shareholders
with the voting rights (in case of obtaining written opinion from the Shareholders).
Resolutions of the General Meeting of Shareholders on amendment of and
supplement to the Charter; on classes of shares and quantity of shares offered for sale;
merger, re-organization and dissolution of the Company; or on transactions of
purchase or sale of assets of the Company or its Branches with a value of fifty per
cent (50%) or more of the total value of assets of the Company based on the most
24
recent audited financial statements shall be approved when they are passed by seventy
five percent (75%) or more of the total votes of the Shareholders with voting rights
who are present directly or via their Proxies at the meeting of the General Meeting of
Shareholders (in case the meeting is held directly), or at least seventy five percent
(75%) of the total votes of the shareholders with the voting rights (in case of obtaining
written opinion from the Shareholders).
Voting to elect members of the Board of Directors must be implemented by
the method of cumulative voting in accordance with the provisions set forth in the
Regulations on Corporate Governance.
Voting form may be sent to the Board of Directors through registered letters,
which the head of Voting Counting Committee shall be entitled to open voting form.
Such voting form shall be valid even if they do not comply with formality.
4. The person presiding over the meeting of the General Meeting of
Shareholders shall be responsible to organize the filling of minutes of meeting of the
General Meeting of Shareholders. The minutes of meeting of the General Meeting of
Shareholders must be published on the website of the Company within twenty four
(24) hours from the end of the meeting of the General Meeting of Shareholders. The
minutes of the meeting of the General Meeting of Shareholders shall be considered
as authentic evidence of the minutes of work conducted at the General Meeting of
Shareholders unless an objection to the contents of the minutes is provided validly
within a time-limit of ten (10) days from the date of sending the minutes. The minutes
must be in Vietnamese, must be signed for certification by the Chairman of the
General Meeting of Shareholders and the Secretary, and must be made in accordance
with the Law on Enterprises and this Charter. All records, minutes, book of signatures
of the attending Shareholders, and documents authorizing to attend the meeting must
be kept at the head office of the Company.
5. It requires a quorum in order to conduct the meeting of the General
Meeting of Shareholders and pass resolutions. Quorum shall be Shareholders and
Proxies representing at least sixty percent (65%) of the shares with voting right.
Where the quorum is not satisfied within thirty (30) minutes from the intended time
of opening the meeting, the convenor of the meeting shall cancel the meeting. The
meeting of the General Meeting of Shareholders must be reconvened within thirty
(30) days from the intended date of the first meeting of the General Meeting of
Shareholders. The re-convened meeting of the General Meeting of Shareholders shall
be conducted only when the attending members are the shareholders and their proxies
representing at least fifty one per cent (51%) of the shares with voting right. Where a
meeting convened for the second time is not able to be conducted due to an
insufficient quorum within thirty (30) minutes from the intended time of opening the
meeting, the General Meeting of Shareholders may be convened for a third time
within twenty (20) days from the intended date of conducting the second meeting;
and in such case, the meeting shall be conducted irrespective of the number of
attending Shareholders or their Proxies, and shall be deemed valid and shall have the
right to make decisions on all matters proposed to be passed at the first meeting of
the General Meeting of Shareholders.
25
6. On the date of the meeting of the General Meeting of Shareholders, the
Company must carry out procedures to register its Shareholders and must implement
such registration until all Shareholders who are entitled to attend the meeting and
present have been fully registered.
7. Upon registration of Shareholders, the Company shall issue the voting
card to each Shareholders or Proxies with voting rights which shall indicate
registration number, full name of Shareholder, full name of Proxies and number of
votes of such Shareholder. When conducting voting at the meeting, the Shareholders
shall conduct the voting by voting cards in accordance with the Regulations on
Corporate Governance and instruction of the Voting Counting Committee. The
General Meeting of Shareholders shall establish the Voting Counting Committee,
which comprises the vote-counting members and vote-counting supervisor. To
facilitate the Voting Counting Committee to carry out its rights and duties, Voting
Counting Committee may establish an assistant committee to support the Voting
Counting Committee.
8. Any Shareholder or Proxy who arrives after the opening of the meeting
of the General Meeting of Shareholders shall be registered immediately and shall
have the right to participate and vote at the meeting. However, the Chairman shall not
be responsible to delay the Meeting so that such late Shareholders may register, and
the effectiveness of any voting which has already been conducted before the late
Shareholders attend shall not be affected.
9. The Chairman has the right to decide the formality, procedures and
issues arising outside the meeting agenda of the General Meeting of Shareholders.
10. Without obtaining opinions from the General Meeting of Shareholders,
the Chairman of the meeting may at any time adjourn the General Meeting of
Shareholders where as sufficient quorum is present to another time and to a different
venue of the meeting if the Chairman considers that (a) the venue of the General
Meeting of Shareholders fails to provide convenient seats for all attendees, (b) the
behaviour of attendees obstruct or is likely to obstruct the order at the meeting, or (c)
an adjournment is necessary so that the work of the General Meeting of Shareholders
may be carried out validly. Additionally, the Chairman may adjourn the General
Meeting of Shareholders as per unanimous agreement or at request of the meeting of
General Meeting of Shareholders with a sufficient quorum. The maximum time for
any adjournment of a meeting shall not be more than three (03) days as from the date
of the proposed opening of the meeting. An adjourned meeting of the General
Meeting of Shareholders shall not consider any issues other than the issues which
should have been legally resolved at the previously adjourned meeting of the General
Meeting of Shareholders.
Where the Chairman adjourns or postpones a meeting of the General
Meeting of Shareholders contrary to the provisions in this Clause, the General
Meeting of Shareholders shall elect another person from the attendees to replace the
Chairman in conducting the meeting until its completion, and the effectiveness of
voting conducted at such meeting shall not be affected.
26
11. The Chairman or Secretary of a meeting of the General Meeting of
Shareholders may carry out activities required to direct the conduct of the General
Meeting of Shareholders in a valid and orderly manner and to enable the meeting to
reflect the expectations of the majority of attendees.
12. The Board of Directors may require the Shareholders or Proxies
attending the meeting of the General Meeting of Shareholders to be checked or
subject to other security measures which the Board of Directors deems appropriate.
Where any Shareholder or Proxy refuses to comply with the inspection rules or the
security measures mentioned above, the Board of Directors may, after careful
consideration, reject or expel such Shareholder or Proxy from the meeting of the
General Meeting of Shareholders.
13. The Board of Directors may, after due considerations, take the
measures which it deems appropriate to:
a. Arrange seats at the venue of a meeting of the General Meeting of
Shareholders or adjust the number of attendees at the venue of the meeting of the
General Meeting of Shareholders;
b. Ensure safety for the attendees present at the venue of the meeting;
c. Create favourable conditions for Shareholders to attend (or continue
attending) a meeting of the General Meeting of Shareholders.
The Board of Directors may have full powers to change the above measures
and take all measures if necessary. The measures taken may be the issuance of entry
permits or use of other options.
14. In a case where the General Meeting of Shareholders takes the above
measures, when determining the venue of the meeting, the Board of Directors may:
a. Notify that the meeting shall be conducted at the venue in the notice
and the Chairman of the meeting shall be present there (the “Official Venue of the
Meeting”);
b. Arrange for Shareholders or Proxies who are unable to attend the
meeting in accordance with this Article or the persons who want to attend the meeting
of the General Meeting of Shareholders at a venue different from the Office Venue
of the Meeting can attend the meeting at the same time.
The notice on holding the Meeting shall not be required to state the detailed
organizational measures in accordance with this Article;
15. In this Charter (unless where the context otherwise requires), all
Shareholders and Proxies (if any) shall be considered to attend the meeting at the
Official Venue of the Meeting.
16. The Company shall hold the meeting of the General Meeting of
Shareholders at least once per year. The annual meeting of the General Meeting of
Shareholders shall not be held by way of collecting written opinions.
27
Article 18. Authority and procedures for collection of written opinions in
order to pass a resolution of the General Meeting of Shareholders
The authority and procedures for collection of written opinions in order to
pass a resolution of the General Meeting of Shareholders shall be implemented in
accordance with the following provisions:
1. The Board of Directors shall have the right to collect written opinions
in order to pass a resolution of the General Meeting of Shareholders whenever
necessary for the interests of the Company.
2. The Board of Directors must prepare written opinion forms, a draft of
the resolution of the General Meeting of Shareholders, and other documents
explaining the draft resolution. The written opinion form together with the draft
resolution and explanatory documents must be sent by a method which is guaranteed
to reach the registered address of each Shareholder. The Board of Directors must
ensure to send and release the documents to Shareholders within a reasonable period
for the review and voting and must sent at least ten (10) days prior to the expiry date
of receipt of written opinion forms.
3. The written opinion form must contain the following basic details:
a. Name, head office address, number and date of issuance of the
Enterprise Registration Certificate; place of business registration of the Company;
b. Purpose of collecting written opinions;
c. Full name, permanent address, nationality, and the number of People’s
identity card, of the passport or other lawful personal identification with regard to a
shareholder being an individual and the name, permanent address, nationality,
number of establishment decision or number of business registration of a Shareholder
or Proxy with regard to a Shareholder being an organization; the number of shares of
each class and number of votes of the Shareholder;
d. Issue to be obtained opinions in order to pass the resolution;
e. Voting options, comprising agreement, non-agreement, or abstention
with respect to each issue to be obtained opinions;
f. Time-limit within which the completed written opinion form
must be returned to the Company;
g. Full name and signature of the Chairman of the Board of Directors and
of the Legal Representative of the Company.
4. Any completed written opinion form must bear the signature of the
Shareholder being an individual, and of the Authorized Representative or of the Legal
Representative of the Shareholder being an organization.
Written opinion form must be returned to the Company in a sealed envelope
and no one shall be permitted to open the envelope prior to the vote-counting. Any
completed written form received by the Company after the expiry of the time-limit
stated in the written opinion form or any form which has been opened shall be invalid.
28
5. The Board of Directors shall conduct the vote-counting and shall
prepare minutes of the vote-counting in the presence of the Person in charge of
Corporate Governance or of Shareholder(s) not holding a managerial position in the
Company. The vote-counting minutes shall contain the following basic details:
a. Name, head office address, number and date of issuance of the
Enterprise Registration Certificate; and place of business registration of the
Company;
b. Purpose of collection of written opinions and issues to be obtained
opinions in order to pass a resolution;
c. Number of shareholders with total numbers of votes having participated
in the vote, classifying the votes into valid and invalid and including an appendix as
a list of the Shareholders having participated in the vote;
d. Total number of votes for, against and abstentions on each issue voted
on;
e. Resolutions which have been passed;
f. Full name and signature of the Chairman of the Board of Directors, of
the legal representative of the Company and of the person who supervised the vote-
counting.
The members of the Board of Directors and the person who supervised the
vote-counting shall be jointly liable for the truthfulness and accuracy of the vote-
counting minutes, and shall be jointly liable for any loss and damage arising from a
resolution which is passed due to an untruthful or inaccurate counting of votes.
6. The vote counting minutes must be published on the website of the
Company within twenty four (24) hours from the time of completion of the vote-
counting.
7. Written opinion forms which were returned, the vote-counting minutes,
the full text of the resolution which was passed and any related documents sent with
all of the written opinion forms must be kept as archives at the head office of the
Company.
8. A resolution which is passed by way of collecting written opinions of
Shareholders must be approved by the Shareholders representing at least sixty five
percent (65%) of the total voting shares and shall have the same validity as a
resolution passed in a meeting of the General Meeting of Shareholders.
Article 18B. Demand for cancellation of resolutions of the General Meeting of
Shareholders
Within ninety (90) days from the date of receipt of the minutes of a meeting
of the General Meeting of Shareholders or the minutes of results of counting written
opinion forms at the General Meeting of Shareholders, Shareholders or groups of
Shareholders holding five percent (05%) or more of the total common shares for at
least six (06) consecutive months, members of the Board of Directors, and the
General Director shall have the right to request a court or an arbitration of Vietnam
29
to consider and cancel a resolution of the General Meeting of Shareholders in the
following cases:
1. The formality and procedures for convening a meeting of the General
Meeting of Shareholders did not comply with the Law on Enterprises and this
Charter, except for the case stipulated in Clause 7 Article 16 of this Charter;
2. The sequence and procedures for issuing a resolution and the content
of the resolution breached the Law or this Charter.
In case where a resolution of the General Meeting of Shareholders is
cancelled in accordance with a decision of a court or an arbitration, the convenor of
a meeting of the General Meeting of Shareholders at which such resolution is
cancelled may consider re-organizing the General Meeting of Shareholders within
thirty (30) days in accordance with the sequence and procedures stipulated in the
Law on Enterprise and this Charter.
VII.BOARD OF DIRECTORS
Article 19. Composition and Term
1. The Board of Directors shall have at least five (5) members and not
more than eleven (11) members. The office term of a member of the Board of
Directors shall not exceed five (5) years. Members of the Board of Directors may be
re-elected with an unlimited number of terms. The total number of independent
members of the Board of Directors must account for at least one-third of the total
members of the Board of Directors. The minimum number of independent members
of the Board of Directors shall be determined by the method of rounding down. The
independent members of the Board of Directors must satisfy all conditions in
accordance with the Vietnamese Law. A member of the Board of Directors may be
not a Shareholder of the Company, nor hold Vietnamese nationality and/or nor reside
in Vietnam.
The Board of Directors’ member shall not be allowed to serve on the Board
of Directors of more than five (05) companies at the same time, except as the member
of the Board of the Directors of the companies in the same corporation or companies
operating under the Group, including parent company - subsidiary; an economic
corporation or representatives of the fund management company; the securities
investment company.
2. Candidacy, nomination for members of the Board of Directors
Shareholders holding at least five percent (5%) of ordinary shares for at least
six (06) consecutive months shall be entitled to aggregate the number of voting rights
of each such Shareholder to nominate candidates to be selected to the Board of
Directors.
A Shareholder or a group of Shareholders holding from five percent (5%) to
less than ten percent (10%) of the total voting shares for at least six (6) consecutive
months shall be entitled to nominate one (01) candidate in order to elect such member
to the Board of Directors; from ten percent (10%) to less than thirty percent (30%) to
nominate up to two (02) candidates; from thirty percent (30%) to less than forty
30
percent (40%) to nominate up to three (03) candidates; from forty percent 40% to less
than fifty percent (50%) to nominate up to four (04) candidates; from fifty percent
50% to less than sixty percent (60%) to nominate up to five (05) candidates; from
sixty percent (60%) to less than seventy percent (70%) to nominate up to six (06)
candidates; from seventy percent (70%) to less than eighty percent (80%) to nominate
up to seven (7) candidates; from eighty percent (80%) to less than ninety percent
(90%) to nominate up to eight (8) candidates.
The formality and procedure for nominating the Board of the Directors’
member shall be carried out in accordance with the Regulations on Corporate
Governance of the Company.
Where the number of candidates to the Board of Directors by way of standing
for election or nomination is still insufficient, the incumbent Board of Directors may
nominate additional candidates or hold a nomination in accordance with the
mechanism stipulated by the Company in the Regulations on Corporate Governance.
The mechanism for nomination or the method of nominating candidates to the Board
of Directors by the incumbent Board of the Management must be clearly announced
and must be approved by the General Meeting of Shareholders before commencing
the nomination.
3. The status as a member of the Board of Directors shall be terminated in
the following cases:
a. Such member is ineligible to be a member of the Board of Directors tin
accordance with the Law on Enterprises or is prohibited from being a member of the
Board of Directors by Law;
b. Such member sends an written application for resignation to the head
office of the Company;
c. Such member (i) has his/her civil act capacity lost or restricted or (ii)
has violated the law and has been detained by the competent State bodies in
accordance with the Law on criminal procedure;
d. Such member absented, did not attend meetings of the Board of
Directors for a consecutive period of six (06) months without consent of the Board of
Directors, and the Board of Directors decides that the position of such member is
vacated;
e. The member is dismissed, removed from the Board of Directors by a
resolution of the General Meeting of Shareholders.
4. [Intentionally deleted].
5. The appointment of members of the Board of Directors must be
disclosed in accordance with the Laws on securities and securities market.
Article 20. Powers and Duties of the Board of Directors
1. Business activities and affairs of the Company must be supervised and
directed by the Board of Directors. The Board of Directors shall be the body with full
31
powers to exercise all rights on behalf of the Company, excluding except the
authorities which belongs to the General Meeting of Shareholders.
A shareholder as a member of the Board of Directors, the General Director,
a Executive Director or the Chief Accountant of the Company must undertake to hold
one hundred per cent (100%) of shares in his/her own possession for a period of at
least 6 months from the date of first listing on the Stock Exchange of Ho Chi Minh
City and fifty percent (50%) of such shares for a period of the following six (06)
months, excluding the State-owned shares held by such Shareholder as
representatives of the State.
2. The Board of Directors shall be responsible for supervising (including
supervising the General Director and the Other Enterprise Managers), controlling the
management of the Company under the mechanism as mentioned in this Charter and
the Regulations on Corporate Governance.
3. The rights and obligations of the Board of Directors shall be stipulated
by the Law, this Charter, the Regulations on the Corporate Governance, and
resolutions of the General Meeting of Shareholders. Specifically, the Board of
Directors shall have the following rights and obligations:
a. To make decisions on annual plans for development of annual business
and production, and budgets;
b. To determine the operational objectives on the basis of strategic
objectives approved by the General Meeting of Shareholders;
c. To appoint, remove or dismiss, and to enter into or or terminate labour
contracts with (i) the General Director or, (ii) any Other Enterprise Managers of the
Company to make decisions on their salary and other benefits;
To decide to appoint, remove or dismiss an Authorized Representative to
exercise the ownership rights of shares or capital contributed to other organizations/
enterprises, and to make decisions on the level of remuneration and other benefits of
such persons;
Such dismissal must not be contrary to the contractual rights (if any) of the
dismissed persons;
c1. To report the General Meeting of Shareholders the appointment of the
General Director by the Board of Directors;
d. To make decisions on the organizational structure of the Company,
e. To resolve claims of the Company against Managers as well as to make
decisions on selecting a representatives of the Company to resolve relating to legal
proceedings against such Managers;
f. To propose the class of shares which may be issued and the total
number of shares of each class to be issued;
g. To propose issuance of bonds, converting bonds into shares, and
warrants which entitle owners to purchase shares at a pre-determined price;
32
h. To determine the prices of bonds, shares and convertible securities
offered for sale if so authorized by the General Meeting of Shareholders;
i. To propose annual dividend rates and to determine provisional dividend
rates; to organize dividends payment.
j. To propose the re-organization or dissolution of the Company;
k. To publicize benefits. Any member of the Board of Directors, one way
or another, direct or indirectly benefits from a contract or transaction signed or
intended to be signed with the Company and is aware that he/she has an interest in
such contract or transaction, he/she shall be responsible to disclose the nature and
content of such interest at the meeting where the Board of Directors considers signing
such contract or transaction for the first time.
4. The following issues must be approved by the Board of Directors:
a. Establishment, closure of Branches or Representative Offices of the
Company;
b. Establishment, separation, merger, consolidation, conversion or
dissolution of Subsidiaries of the Company;
c. Within the scope regulated in Clause 2 Article 149 and except for the
case stipulated in Clause 3 Article 162 of the Law on Enterprises, in which the
approval of the General Meeting of Shareholders is required, the Board of Directors
shall from time to time make decisions on implementation, amendment or
cancellation of the major contracts and/or transactions of the Company, of any Branch
of the Company or of the subsidiaries (including contracts and/or transaction for
purchase, sale, loan, lending, merger, takeover and joint venture and other contract
having the contract value accounting for thirty five prevent (35%) or more of the total
value of the assets of the Company recorded in the most recent financial statements).
d. Appointment and removal of any person who are authorized by the
Company to act as commercial representatives and Lawyers of the Company;
e. (i) Borrowing and (ii) implementation of any warranties and
compensations of the Company with the value stipulated in the Regulations on
Corporate Governance;
f. Investments exceeding ten percent (10%) of the planned value and in
the annual business budgets;
g. Purchase or sale of shares or capital contribution in other companies
established in Vietnam or overseas;
h. Valuation of non-cash assets contributed to the Company and relating
to the issuance of shares or bonds of the Company, including gold, land use rights,
intellectual property rights, technology and technological know-how;
j. Purchase or reclamation by the Company of no more than ten percent
(10%) of shares of each class;
33
l. Any other business issues or transaction which require approval as
decided by the Board of Directors within the scope of its power and responsibilities
based on the regulations on corporate governance; and
m. Decision on the purchase price or recovery of shares of the Company.
5. The Board of Directors must report to the General Meeting of
Shareholders its activities, in particular, its supervision in respect of the General
Director and Other Enterprise Managers within a fiscal year. The report of the Board
of Directors may contain the evaluation of the Audit Committee as required under
Article 23B. If the Board of Directors fails to submit such report to the General
Meeting of Shareholders, the Company’s annual financial statements shall be deemed
invalid and not yet approved by the Board of Directors.
6. Unless otherwise stipulated by Law and the Charter, the Board of
Directors may authorize Managers to deal with work on behalf of the Company.
7. Members of the Board of Directors shall be entitled to remunerations
for their assignments in their capacity as members of the Board of Directors. The total
remuneration for the Board of Directors shall be determined by the General Meeting
of Shareholders and shall be distributed to members of the Board of Directors in
accordance with the Regulations on Corporate Governance.
The total remuneration paid to each member of the Board of Directors shall
be included in business expenses of the Company in accordance with the Law on
corporate income tax and must be itemized in the annual report of the Company.
The total amount of money paid to each member of the Board of Directors
comprises remuneration, expenses, commission, right to purchase shares and other
benefits conferred by the Company, its subsidiaries and affiliated companies and
other companies in which a member of the Board of Directors is the capital
contributor representative must be detailed in the annual report of the Company.
8. Any member of the Board of Directors who holds any executive
position or who works in sub-committees of the Board of Directors or who performs
other work which is, in the opinion of the Board of Directors, beyond the scope of
the normal tasks of a member of the Board of Directors, may be paid extra
remuneration in the form of a lump sum wage on each time, or salary, commission,
profit percentage or other form as per remuneration policies for the member of the
Board of Directors.
9. Members of the Board of Directors shall be entitled to reimbursement
of all costs of meals, accommodation and travel and other reasonable expenses paid
by them when performing their responsibilities as a member of the Board of
Directors, including expenses arising out of attending at the meetings of the Board of
Directors or sub-committees of the Board of Directors, or the General Meeting of
Shareholders.
Article 21. Chairman of the Board of Directors
1. The Board of Directors must select among members of the Board of
Directors to elect as Chairman. The selection of the Chairman shall comply with the
34
Regulations on Corporate governance. The Chairman of the Board of Directors shall
not act concurrently as the General Director of the Company.
2. The Chairman of the Board of Directors shall have the following rights
and duties:
a. To prepare working plans and programs of the Board of Directors;
b. To prepare or organize the preparation of, the programs, agenda and
documents for the meetings of the Board of Directors; to convene and preside over
the General Meeting of Shareholders and the meetings of the Board of Directors;
c. the Chairman of the Board of Directors is responsible to ensure that the
Board of Directors submit annual financial reports, operational reports of the
Company, its audit and inspection reports to the Shareholders at the meeting of the
General Meeting of Shareholders;
d. To sign resolutions, decisions of the Board of Directors on behalf of the
Board of Directors;
e. To monitor and inspect implementation of the decisions of the Board
of Directors;
f. To make recommendations on the appointment, removal or dismissal
of the General Director to the Board of Directors or the General Meeting of
Shareholders. On behalf of the Board of Directors, to sign labor contracts with the
General Director;
g. Where necessary, the Chairman of the Board of Directors may suspend
decisions of the General Director to reduce losses. After that, it must be approved by
the Board of Directors to obtain an official decision within fifteen (15) days from the
date of issuance of such decision on suspension;
h. Other rights and duties stipulated in the Law on Enterprises and this
Charter.
3. The Chairman of the Board of Directors must convene and preside over
the meetings of the General Meeting of Shareholders and meetings of the Board of
Directors. Where the Chairman has notified the Board of Directors of his/her absence,
or of his/her absence due to force majeure, or his/her inability to carry out his/her
duties, a Board of Directors member who is authorized by the Chairman shall carry
out the Board of Directors Chairman’s rights and duties. In case of no proxy, the
Board of Directors may appoint, on the principle of simple majority, another person
among them to temporarily execute the duties of the Chairman.
4. Where the Chairman resigns or is dismissed or removed, the Board of
Directors must elect any replacement within a period of ten (10) days from the date
of the Company’s receipt of any resignation letter from the date of the Board of
Directors’s decision on removal, dismissal of the Board of Directors Chairman.
Article 22. Alternate members of the Board of Directors
[Intentionally deleted]
35
Article 23. Meetings of the Board of Directors
1. Initial meeting of the office term of the Board of Directors. If the Board
of Directors elects the Chairman, then the initial meeting of a term of the Board of
Directors in order to elect the Chairman and to pass other resolutions within its
authority must be conducted within a time-limit of seven (07) working days from the
date of completing the election of the Board of Directors for that term. Such meeting
shall be convened by the member who obtains the highest number of votes. If two or
more members obtain the same highest number of votes, such members shall elect a
person amongst them to convene the meeting by a majority vote.
2. Regular Meeting. The Chairman of the Board of Directors must
convene regular meetings of the Board of Directors, prepare the meeting agenda,
determine the appropriate time and venue of the meetings at least five (05) working
days before the proposed date of such meetings. The Chairman may convene a regular
meeting of the Board of Directors whenever necessary, but there must be at least one
(01) meeting every quarter.
3. Extraordinary Meeting. The Chairman must convene an extraordinary
meeting of the Board of Directors when he/she sees necessary for the interests of the
Company. In addition, the Chairman of the Board of Directors must convene a
meeting of the Board of Directors which shall not be delayed without a legitimate
reason, when any of the following subjects makes a written request specifying the
purpose of the meeting and the issues to be discussed:
a. The General Director or at least five (05) Other Enterprise Managers;
b. An independent member of the Board of Directors;
c. At least two (02) members of the Board of Directors;
d. An independent auditor who requests discussion of the audit report and
the status of the Company
4. Meetings of the Board of Directors stipulated in Clause 3 of this Article
must be conducted within seven (07) working days after the request for the meeting
is made. If the Chairman of the Board of Directors does not accept to convene a
meeting as requested, then the Chairman must be liable for any damage caused to the
Company; the person making the request as referred to in Clause 3 of this Article may
himself or herself convene a meeting of the Board of Directors.
5. Meeting Venue. Meetings of the Board of Directors shall be conducted
at the registered address of the Company or at another address in Vietnam or abroad
as proposed by the Chairman of the Board of Directors and unanimously approved
by the Board of the Management.
6. The notice of a Board of Directors meeting must be sent to the members
of the Board of Directors at least five (05) working days before holding the meeting;
the members of the Board of Directors may refuse the notice of invitation in writing
and such refusal may take retroactive effect. The notice of the meeting of the Board
of Directors must be made in writing and in Vietnamese; must provide information
on the agenda, time and venue of the meeting; accompanied by necessary documents
36
regarding the issues to be discussed and voted on at the meeting of the Board of
Directors and voting form for the members of the Board of Directors who shall be
unable to attend the meeting. The notice of invitation shall be sent by post, fax,
electronic mail or other methods guaranteed to reach the address of each member of
the Board of Directors as registered with the Company.
7. Quorum. The first meeting shall only be conducted for passing
resolutions/decisions if at least three-quarters of the members of the Board of
Directors attend such meeting. A member of the Board of Directors is considered to
attend the meeting when: (i) present in person; (ii) present via his/her proxy; (iii)
having the valid votes as stipulated in Clause 11 of this Article; or (iv) in the forms
stipulated in Clause 12 of this Article.
A Director may authorize another person to attend a meeting if the majority
of members of the Board of Directors agree.
In a case of an insufficient quorum, the meeting must be re-convened within
seven (07) days from the proposed date of the first meeting. The re-convened meeting
shall be conducted if more than half of the number of members of the Board of
Directors attends in person or via their Proxies.
8. Voting.
a. Except for Point (b) of this clause, each member of the Board of
Directors or his/her Proxy who is present in his/her capacity as an individual at the
meeting of the Board of Directors shall have one (01) vote.
b. A member of the Board of Directors shall not be permitted to vote on
any contract or transaction or proposal in which such ember or any Related Person of
such member has interests which conflict of possibly conflicts with the interests of
the Company. A member of the Board of Directors shall not be included in quorum
required to be present to hold a meeting of the Board of Directors regarding
resolutions on which the member does not have the voting right.
Any member of the Board of Directors who benefits from any contract
stipulated in Clause 4 of Article 29 of the Charter shall be deemed to have a
considerable interest in such contract.
b. According to Point b of this Clause, when an issue arise at a meeting of
the Board of Directors, relating to the interest of a member of the Board of Directors
or the voting right of such member, which is not resolved by voluntary waiver of the
voting right of the relevant member of the Board of Directors, then such issue shall
be referred to the meeting Chairman for decision. The Chairman’s decision on such
issue shall be final, except where the nature or scope of the interest of the relevant
member of the Board of Directors has not been fully announced.
9. The Board of Directors shall pass decisions/resolutions based on
majority consent of the members of the Board of Directors present (more than fifty
per cent – 50%). Where the number of votes for and against are equal, then the Board
of Directors’ Chairman or the person authorized by the Chairman to attend and vote
at the meeting shall cast his/her vote as the deciding vote.
37
10. Declaration of interests. Any member of the Board of Directors who
directly or indirectly benefits from a contract or transaction signed or intended to be
signed with the Company and aware that he/she has an interest in such contract or
transaction is responsible to disclose the nature and contents of such interest at the
meeting where the Board of Directors considers the signing of such contract or
transaction for the first time. Where a member of the Board of Directors is not aware
that such member and his/her Related Person have interest at the time a contract or
transaction is signed with the Company, such member must publicly announce his/her
related interests at the first meeting of the Board of Directors to be held after such
member becomes aware that he/she has or will have an interest in the relevant contract
or transaction.
11. Voting by default. An absent member of the Board of Directors may
vote on a resolution of the Board of Directors by voting in writing. Such written votes
must be in a sealed envelope and be given to the Chairman no later than one (01) hour
before the proposed time when the meeting is conducted.
12. Meetings by telephone or by other forms. A meeting of the Board of
Directors may be conducted by way of a conference call between members of the
Board of Directors when all or a number of members are at different places that each
attending member is able to:
a. Hear each other member of the Board of Directors expressing their
opinions in the meeting;
b. Express his/her opinions to other attending members at the same time.
The communication among the members may be implemented directly
via telephone or by any other means of communication (including use of such means
at the time of approving the Charter or thereafter) or by a combination of such means.
The members of the Board of Directors who attend such meeting shall be deemed
physically present at such meeting. The meeting venue to be held in accordance with
this provision shall be the venue where the largest group of members of the Board of
Directors gathers, or shall be the venue where the Chairman of the meeting is present
if there is no such a group.
Resolutions passed at a meeting via telephone which are duly held and
conducted shall take effect immediately after closing the meeting, but must be
confirmed by the signatures of all attending members of the Board of Directors in the
meeting minutes.
13. Written resolutions. A resolution by way of collection of written
opinions shall be approved based on majority consent of members of the Board of
Directors who have voting rights. Such resolution shall have the same effect and
validity as a resolution passed by the members of the Board of Directors at the
meeting which is convened and held in accordance with the normal practice.
14. Meeting minutes. The Person in charge of Corporate Governance shall
be responsible for delivering the minutes of a meeting of the Board of Directors to
members, and such minutes shall be deemed authentic evidence of the work carried
out at such meeting unless there is an objection of the contents of the provided
38
minutes within ten (10) days from the date of delivery. The minutes of the meeting
of the Board of Directors must be written in Vietnamese and must contain the
signatures of the chairperson of the meeting and the person recording the minutes.
The time-limit of filing the minutes of the meeting of The Board of Directors
is implemented in accordance with the Regulations on Corporate Governance.
15. Persons invited to attend a meeting as observers. The General Director,
other Other Enterprise Managers and experts may attend a meeting of the Board of
Directors at its invitation but shall not be permitted to vote.
Article 23B. Sub- committees of the Board of Directors
1. The Board of Directors shall set up Audit Committee, Strategy
Committee, Personnel Committee and Salary and Bonuses Committee to assist it in
carrying out the Board of Directors’ activities. The Audit Committee, Personnel
Committee and Salary and Bonuses Committee must respectively have one (1)
independent member of the Board of Directors who shall act as the head of each sub-
committee.
2. The Board of Directors shall be required to set up other special sub-
committees after the approving resolutions of the General Meeting of Shareholders.
3. Unless otherwise provided for in this Charter, the members of sub-
committees may consist of one or more members of the Board of Directors and one
or more external members as decided by the Board of Directors. During the course
of performance of the authorized powers, the sub-committees must abide by the
regulations issued by the Board of Directors. Such regulations may govern or permit
the admission of additional persons who are not members of the Board of Directors
to the afore said sub-committees and may permit such persons to vote in the capacity
as members of the sub-committee, but (i) must ensure that the number of the external
members is less than half of the total members of the sub-committee, and (ii) the
resolutions of the sub-committee shall take effect only when there are more than fifty
percent (50%) members of the Board of Directors under such the sub-committees
attending and voting at the meeting.
4. The resolution implementation of sub-committees under the Board of
Directors or of any person as a member of sub-committees of the Board of Directors
must comply with the applicable laws and provisions in this Charter.
5. The Board of Directors shall provide detailed regulations on
establishment of and responsibilities of the sub-committees and each member.
6. Relevant provisions on the organizational structure and functions of the
Audit Committee:
6.1. Structure of Audit Committee: A majority of the members of the Audit
Committee are independent members of the Board of Directors and non-executive
members of the Board of Directors. The specific contents related to the organizational
structure of the Audit Committee shall be prescribed in the Regulations on Corporate
Governance.
39
6.2. At least one (01) member of the Audit Committee shall have
qualifications, certificates or experience relevant to finance, accounting or auditing.
6.3. The Audit Committee has the following rights and responsibilities:
a. At the request of a Shareholder or a group of Shareholders as provided in
Article 3.10 of this Charter, the Audit Committee shall carry out an inspection within
a period of seven (7) working days from the date of receipt of the request. The Audit
Committee must submit a report on the issues under inspection requirement to the
Board of Directors and the requesting Shareholder or a group of Shareholders within
a period of fifteen (15) working days from the date of completion of the inspection.
Such inspections stipulated in this Clause shall not disrupt the normal activities of the
Board of Directors and shall not interrupt the management of normal corporate
operations;
b. Establish a mechanism in receiving comments and complaints of
employees in the Company in terms of mistakes, negligence in the management,
business administration, risk management, internal control. This mechanism must
ensure the confidentiality and protection of the rights and interests of the respondent,
as well as the provisions on independent investigation and subsequent remedies.
c. Upon discovery of a member of the Board of Directors or the General
Director breaching her/his managerial obligations stipulated in Article 160 of the
Law on Enterprises, Article 28 and Article 29 of this Charter, request the person in
breach to cease the breach and a written notice shall be immediately given to the
Board of Directors, the Board of Directors shall making a decision for solution.
d. To inspect the reasonableness, legality, truthfulness and prudence in terms
of management and administration of the business activities, in terms of organization
of statistic and accounting work and preparation of financial statements;
e. To review books of accounts and other documents of the Company, the
management and administration of the corporate operations pursuant to a resolution
of the General Meeting of Shareholders or at request of a Shareholder or a group of
Shareholders stipulated in Article 10.3 of this Charter;
f. [Intentionally deleted];
g. To appraise reports on business activities, annual, semi- annual and
quarterly financial statements of the Company. Establishing reports on evaluating
these documents of the Board of Directors to the General Meeting of Shareholders at
its annual meetings;
h. Internal Audit: The Audit Committee is responsible for internal auditing
activities of the Company.
i. In the accounting and auditing activities of the Company: implement the
rights and obligations as stipulated under the Regulations on Corporate Governance.
j. To exercise other powers and duties as stipulated this Charter, Regulations
on Corporate Governance and the applicable laws.
6.4. The Audit Committee is eligible to use independent consultants to
perform assigned tasks.
40
6.5. The General Director and the Other Enterprise Managers must provide
all information and documents relating to the corporate operations at the request of
the Audit Committee.
VIII.GENERAL DIRECTOR, OTHER OTHER ENTERPRISE MANAGERS
AND SECRETARY OF THE COMPANY
Article 24. Organization of the management apparatus
The managerial system of the Company must ensure that the managerial
apparatus shall be liable to the Board of Directors and shall be under the leadership
of the Board of Directors. The Company shall have one (01) General Director, some
Other Enterprise Managers consisted of Executive Directors and other Other
Enterprise Managers positions. The appointment, removal or dismissal of said
positions i must be implemented by a duly approved resolution of the Board or
Management. The Executive Directors mean persons who assist the General Director
to implement one or more duties assigned and authorized by the General Director;
shall be responsible for the scope of such assigned and authorized tasks to the General
Director, the Board of Directors and the Law.
Article 25. Other Enterprise Managers
1. At the General Director’s request and upon approval of the Board of
Directors, the Company will recruit a certain numbers of senior management
positions necessary and in compliance with the managerial system and practice of the
Company as determined by the Board of Directors from time to time.
2. The salary, remuneration, benefits and other terms in an employment
contract with Other Enterprise Managers shall be approved by the Board of Directors
based on recommendations of the General Director; in case the Board of Directors
cannot convene for decision, these matters shall be carried out in accordance with the
General Director’s decision and shall be submitted for approval of the Board of
Directors in the nearest meeting. Information about salary of Other Enterprise
Managers must be recorded in a separate item in the annual financial statements and
annual report of the Company
Article 26. Appointment, dismissal, removal, Duties and Powers of the
General Director
1. Appointment. The Board of Directors shall appoint a member of the
Board or another person to be the General Director and shall enter into a contract
which shall specify the salary, remuneration, benefits and other terms related to the
recruitment. The information about salary, allowances and benefits of the General
Director must be recorded in a separate item in the annual report and report financial
statements of the Company.
2. Conditions and standards: The General Direction must be a person who
does not fall into the category of persons prohibited by law from being a General
Director, including: (i) minors; persons whose civil acts capacity is restricted or lost;
(ii) person sentenced or serving prison sentences; (iii) member of people’s armed
forces, of state officials and employees; and (iv) a person prohibited from being a
manager of an enterprise, a cooperative within a time-limit under the decision of the
41
competent State bodies, including: private enterprise owner; partnership member,
Director (General Director); the Chairman, the members of the Board of Directors;
the Member’s Council of an enterprise; the cooperative’s head, the member of the
Cooperative’s Board of Directors declared bankrupt, except for such enterprise,
cooperative go bankrupt due to force majeure.
3. Office term: The office term of the General Director shall be specified
in the Regulations on Corporate Governance.
4. Powers and Duties. The General Director has the following powers and
responsibilities:
a. To organize implementation of decisions adopted by the Board of
Directors and of the General Meeting of Shareholders.
b. To make decisions on all issues without requiring a resolution of the
Board of Directors, inclusive of the signing financial and commercial contracts on
behalf of the Company, and on the organization and management of the day-to-day
business and production activities of the Company in accordance with the best
management practices;
c. To make recommendations on the number and manager positions the
Company needs to recruit for appointment or removal by the Board of Directors when
necessary for the purpose of implementing the best management practices and
structures proposed by the Board of Directors; and to provide advice for the Board of
Directors to decide salary, remuneration, benefits and other terms for the employment
contracts with Other Enterprise Managers;
d. To consult the Board of Directors to make decisions on the number of
employees, wage rate, allowances, benefits, appointments and dismissals and other
terms relating to their employment contracts; to appoint, discharge, dismiss
managers’ titles of the Company, except for those subject to the authority of the Board
of Directors and General Meeting of Shareholders.
e. On November 30th in each year, the General Director must submit to
the Board of Directors a detailed business plan for the next fiscal year for its approval
on the basis of satisfying the requirements of the appropriate budget;
f. To organize implementation of the annual business plans which are
approved by the General Meeting of Shareholders and the Board of Directors;
g. To propose measures to improve the operation and management of the
Company;
h. To prepare long-term, annual and quarterly budget estimates of the
Company (hereinafter referred to as an estimated) to serve long-term, annual and
quarterly management activities of the Company in accordance with the business
plans. The annual budget estimate (including the proposed balance sheet, profit and
loss statement and cash flow statement) for each fiscal year must be submitted to the
Board of Directors for its approval and must contain the information as per the
Company’s regulations which issued by the Board of Directors.
i. To make recommendations on methods of paying dividends and
dealing with losses in business;
42
j. The General Director shall be the legal representative of the Company
to sign labour contracts or authorize Other Enterprise Managers to recruit and sign
those contracts;
k. Within the scope of his/her duties and power, the General Director may
authorize other individuals and/or organizations to perform the work related to his/her
duties and rights depending on the demand from time to time.
l. To manage the day-to-day business operations of the Company in
accordance with the provisions of the Law, this Charter and the regulations of the
Company, the resolutions of the Board of Directors and his/her employment contract
signed with the Company.
If his/her management is contrary to those provisions, and causes damages
to the Company, the General Director shall be responsible before the Law (if any)
and shall compensate the Company for the damages.
4. Report to the Board of Directors and Shareholders. The General
Director shall be responsible before Board of Directors and the General Meeting of
Shareholders for implementing of the assigned duties and powers, and must report to
such bodies if so required.
5. Removal, dismissal. The Board of Directors may remove, or dismiss
the General Director when at least two-thirds of the members of the Board of
Directors vote for it (excluding the votes of a member of the Board of Directors in
the case where such member acts as the General Director) and may appoint a new
General Director as replacement.
The General Director may be removed by the Board of Directors in the
following cases:
a. Due to the business demand, the personnel transfer and rotation of the
Company;
b. Due to his or her health that may be insufficient for his or her continued
performance of his or her tasks;
c. Expiry of labor contract; and
d. Retire and have no demand on extending the labor contract.
The General Director may be dismissed by the Board of Directors in the
following cases:
a. Due to any failure to complete his/her duties, or his or her infringement
upon the internal regulations or rules of the Company
b. Infringement upon of the laws that is serious to the extent of taking
criminal responsibility or mandatory termination of the labour contract.
Article 27. Person in charge of Corporate Governance
1. The Board of Directors must appoint at least one person to act as the
person in charge of corporate governance in order to assist corporate governance to
be carried out effectively (“Person in charge of Corporate Governance”). The
43
office terms shall be decided by the Board of Directors. The Person in charge of
Corporate Governance may concurrently be the company secretary. The Board of
Directors may remove the Person in charge of Corporate Governance at any time,
provided that it is not contrary to the relevant laws on labor.
2. The Person in charge of Corporate Governance is responsible for
advising and supporting the Board of Directors by focusing on the following four (04)
areas: (i) Governance, (ii) Consulting, (iii) Communication, (iv) Compliance. In
particular, the Person in charge of Corporate Governance shall endeavor to perform
the following roles:
a. Ensure compliance with laws on corporate governance of public
company;
b. Ensure compliance with governance procedures;
c. Manage the corporate governance framework of the company;
d. [Intentionally deleted];
e. Communicate between the Board of Directors, the General Director and
Other Enterprise Managers, and shareholders;
f. [Intentionally deleted]; and
g. [Intentionally deleted].
3. The above roles as stipulated in Clause 2 are performed through the
following duties:
a. To conduct periodical review and advice the Board of Directors to
ensure that the framework, regulations and procedures comply with all laws and
regulations and all governance practices;
b. To contribute to the flow of information between the Board of
Directors, the members of the Board of Directors and other stakeholders including
shareholders
c. To prepare contents and information necessary for the Board of
Directors to make decision;
d. To keep a record of all powers of attorney, especially those provided
in the Regulations on Corporate Governance;
e. To prepare schedules, calendar and relevant matters (including
documents and minutes) for the meetings of the Board of Directors and its sub-
committees.
f. [Intentionally deleted];
g. To assist the Board of Directors in evaluating the performance of the
Board of Directors, its sub-committees and its members.
h. To note and propose appropriate training sessions for the members of
the Board of Directors;
i. Other relevant tasks.
44
2. The Person in charge of Corporate Governance shall be responsible
to keep information confidential in accordance with the Law and this Charter.
IX. DUTIES OF MEMBERS OF THE BOARD OF DIRECTORS, MEMBER
OF INSPECTION COMMITTEE, THE GENERAL DIRECTOR AND
OTHER ENTERPRISE MANAGERS
Article 28. Responsibility to be prudent
Members of the Board of Directors, the General Director and Other
Enterprise Managers are responsible to perform their duties including those as a
members of sub-committees under the Board of Directors in bona fide for the best
interests of the Company and with an extent of prudence expected from any prudent
peer under similar circumstances.
Article 29. Responsibility to be honest and avoid conflicts of interest
1. Members of the Board of Directors, the General Director and Other
Enterprise Managers are not permitted to take advantage of profitable business
opportunities of the Company for personal purposes; and concurrently not permitted
to use information obtained by virtue of their positions for their personal interest or
for the interests of other individuals or organizations.
2. Members of the Board of Directors, the General Director and other
Other Enterprise Managers shall be obliged to notify the Board of Directors of any
interests to which may conflict with those of the Company and to which they may be
entitled via other economic legal entities, transactions or individuals. The
announcement content includes:
a. Name, address of the head office, business lines, issuance number and
date of the Enterprise Registration Certificate, place of business registration of any
enterprise in which they own contributed capital or shares; ratio and date of owning
such contributed capital or shares;
b. Name, address of the head office, business lines, issuance number and
date of the Business Registration Certificate, place of business registration of any
enterprise in which their Related Persons jointly or severally own shares or
contributed capital of more than ten percent (10%) of the Charter Capital.
The declaration stipulated in this clause must be made within a time-limit of
seven (07) working days from the arising date of any relevant interest; any
amendment or addition must be reported to the Company within seven (07) working
days from the date of such amendment or addition.
The declaration stipulated in this Clause shall be reported to the General
Meeting of Shareholders at its annual meeting, and be displayed and retained in the
head office of the Company. Shareholders, their authorized representatives, members
of the Board of Directors, and the General Director shall have the rights to review the
declared contents whenever necessary.
Any Board of Directors member, and the General Director must, if
performing work in any form in his/her name or on behalf of others within the scope
of business of the Company, must report the nature and content of that work to the
45
Board of Directors, and must only be permitted to perform [the work] if the majority
of the remaining members of the Board of Directors approve; if the work is performed
without reporting or without the approval of the Board of Directors, all income arising
from such activity shall belong to the Company.
3. The Company shall not be allowed to grant any loan or guarantee to
any member of the Board of Directors, the General Director, Other Enterprise
Managers and their Related Person; or to any legal entity in which the above-
mentioned persons have financial interests, except where such loan or guarantee has
been approved by the General Meeting of Shareholders.
4. According to Article 162 of the Law on Enterprises, a contract or
transaction between the Company and the following parties:
4.1 Shareholders or authorized representative of the Shareholders holding
more than ten percent (10%) of the ordinary shares of the Company, and their Related
Persons; or
4.2 Any member of the Board of Directors the General Director and their
Related Persons; or
4.3 Any enterprise in which any member of the Board of Directors, any
member of the Inspection Committee, the General Director or any Other Enterprise
Managers owns contributed capital or shares; any enterprise in which the Related
Persons of any member of the Board of Directors, the General Director or any Other
Enterprise Manager own jointly or separately shares or contributed capital of more
than ten percent (10%) of the charter capital; shall not be invalid if:
a. with respect to any contract or transaction valued at less than twenty
percent (20%) of the total value of the assets of the Company and its Subordinate
Units recorded in the most recent audited financial statements and the contents of
such contract or the main contents of such transaction were announced and the Board
of Directors issued a decision on approval of, and permission of performance of such
contract or transaction;
b. with respect to other contracts or transactions valued at twenty percent
(20%) or more of the total value of the assets of the Company and its Subordinate
Units recorded in the most recent audited financial statements; and other contracts or
transactions not belonging to the authority of the Board of Directors; and the contents
of those contracts or the main contents of these transactions were announced and the
General Meeting of Shareholders approved and permitted performance of such
contracts or transactions.
Members of the Board of Directors, the General Director, Other
Enterprise Managers and their Related Persons must not use the Company
information which have not yet been permitted to be disclosed, or must not disclose
information to others in order to implement related transactions.
5. Neither member of the Board of Directors, nor the General Director,
nor any Senior Manager, nor any Related Person of his or hers shall be allowed to
purchase or sell or deal with shares of the Company or its subsidiaries in any form at
any time when they have sensitive information that definitely will affect the price of
such shares while other Shareholders are not aware of the information.
46
Article 30. Responsibility for loss and compensation
1. Members of the Board of Directors, members of the Inspection
Committee, the General Director and Other Enterprise Managers who breach the
obligations and responsibilities for honestly and prudence or fail to fulfil their
obligations with due diligence and professional capability must be responsible for
any damages caused by their breaches.
2. The Company shall pay compensation to any person who has been, is,
or is likely become a related party in any claim, suit, or legal proceeding (including
civil and administrative cases other than those initiated by the Company) if such
person was or is a member of the Board of Directors, members of the Inspection
Committee, the General Director, the Other Enterprise Managers, the employee of
the Company or an Authorized Representative of the Company, or such person acted
or is acting at the request of the Company in the capacity as a member of the Board
of Directors, members of the Inspection Committee, the General Director, the Other
Enterprise Managers, the employee of the Company or an Authorized Representative
of the Company provided that such person acted honestly, prudently and diligently in
the best interests or without countering the best interests of the Company in
compliance with Law and that there is no evidence that such person committed a
breach of his/her responsibilities. When implementing functions, duties or work
authorized by the Company, the members of the Board of Directors, members of the
Inspection Committee, the General Director, the Other Enterprise Managers, the
employee of the Company or an Authorized Representative of the Company, shall be
entitled to compensation paid by the Company when they become a related party in
any claim, suit or legal proceeding (excluding legal actions initiated by the Company)
in the following cases:
(a) They acted honestly, prudently and diligently in the interests of the
Company and without conflicting with the interests of the Company;
(b) They complied with law and there is no evidence that they failed to
perform their responsibilities.
3. The expenses for compensation shall comprise arising expense
(including lawyer’s fees), judgement expenses, fines and payable actually arising or
deemed reasonable when dealing with such cases within the framework permitted by
Law.
The Company may purchase liability insurance for such persons as stipulated
in Clause 2 of this Article in order to cover the said responsibilities for compensation,
subject to the followings:.
a. The General Meeting of Shareholders shall approve the purchase of
liability insurance for the members of the Board of Directors and the Inspection
Committee;
b. The Board of Directors shall approve the purchase of liability insurance
for the General Director and the Other Enterprise Managers; and
c. The General Director shall decide the purchase of liability insurance for
the cases outside the framework of Points a, b of this Clause.
47
X. INSPECTION COMMITTEE
Article 31. Inspection Committee
[Intentionally deleted]
XI. RIGHT TO INVESTIGATE BOOKS AND RECORDS OF THE COMPANY
Article 32. Right to investigate books and records
1. A Shareholder or a group of Shareholders holding more than five
percent (5%) of the total shares with voting rights for six (06) consecutive months
or more shall have the right to send, directly or via any authorized representatives, a
written request for approval on inspecting, the list of Shareholders and the meeting
minutes of the General Meeting of Shareholders and copying or extracting such
records; to sight and make an extract of the book of minutes and resolutions of the
Board of Directors, mid-year and annual financial statements made in accordance
with the Vietnamese accounting system during working hours and at the head office
of the Company. A request for inspection by the authorized representative of the
Shareholder must be accompanied by a power of attorney of the Shareholder
represented by such person or a notarized copy of such power of attorney.
2. Members of the Board of Directors, the General Director and other
managers shall have the right to inspect the Company’s Register of Shareholders, the
list of Shareholders and other books and records of the Company for any purposes
relating to their positions on the condition that the information must be treated as
confidential.
3. The Company shall keep this Charter and its amendments and
additions, the Enterprise Registration Certificate, regulations, documents proving
asset ownership, minutes of meetings of the General Meeting of Shareholders and of
meetings of the Board of Directors, annual financial statements, accounting books,
and any other documents in accordance with the Law at the head office of the
Company.
4 The Charter must be posted on the Company’s website.
XII. EMPLOYEES AND THE TRADE UNION
Article 33. Employees and the Trade Union
1. The General Director must prepare a plan for the Board of Directors to
approve the matters relating to recruitment, dismissal of employees, salary, social
insurance, welfare, rewards and discipline applicable to employees and Other
Enterprise Managers.
2. The General Director must prepare a plan in order for the Board of
Directors to approve the matters relating to the relationship between the Company
and trade unions in accordance with best management standards, practices and
policies, the practices and policies stipulated in this Charter, the regulations of the
Company, and applicable law.
48
XIII. PROFIT DISTRIBUTION
Article 34. Profit distribution
1. The General Meeting of Shareholders shall decide the rate of dividends
to be paid and the method of annual dividend payment from the Company’s retained
profits.
2. As stipulated by the Law on Enterprises, the Board of Directors may
decide mid-term dividends advances upon considering such advance payment
conforms to the Company’s profitability.
3. [Intentionally deleted]
4. The Company shall not pay interest on dividend payments or on
payments relating to any class of shares.
5. The Board of Directors may request the General Meeting of
Shareholders to approve payment of all or part of dividends by shares, and the Board
of Directors shall be the body implementing such decision.
6. Where any dividend payment or other payments relating to one class of
shares shall be made in cash, the Company must make such payment in Vietnamese
dong. The payment may be made directly or via banks based on the bank details
provided by the Shareholders. If the Company makes a bank transfer based on the
exact banking detail provided by a Shareholder but such Shareholder cannot receive
money, the Company shall not be liable for amount which it has transferred to the
Shareholder entitled to such amount.
7. With approval of the Shareholders at the General Meeting of
Shareholders, the Board of Directors may decide and announce that the owners of
ordinary share certificates shall have the right to choose to receive their dividends in
ordinary shares instead of dividends in cash. These additional shares will be recorded
as paid-up shares of which the buying prices are determined equivalent to the cash
amounts payable for cash dividends paid in cash according to the most accurate
computations.
8. According to the Law on Enterprises, the Law on Securities, the Board
of Directors shall approve a resolution determining a specific date to close the list of
Shareholders. Based on such date, any person who has registered as a Shareholder or
owner of other securities shall be entitled to receive dividends, interest, profit
distribution, receive share certificates, notices or other documents.
9. Dividends shall be paid in full within six (06) months since the day the
annual meeting of the General Meeting of the Shareholders ends. Sequence and procedure
of dividend payments are carried out in accordance with Clause 4 Article 132 of the Law
on Enterprises.
10. Other matters relating to profit distribution shall be implemented in
accordance with Law.
49
XIV. BANK ACCOUNTS, RESERVE FUND, FISCAL YEAR AND ACCOUNTING
SYSTEM
Article 35. Bank accounts
1. The Company will open bank account(s) at one or more Vietnamese
banks or at the branches of the foreign banks permitted to operate in Vietnam.
2. Subject to the prior approval from the competent authority, the
Company may open a bank account in a foreign country in accordance with the Law,
if necessary.
3. The Company will make all payments and accounting transactions via
its Vietnamese dong accounts or foreign currency accounts at the bank where the
Company opened such accounts.
Article 36. Reserve fund
Each year, the Company must appropriate from its post-tax profits: (i) ten
percent (10%) to establish a Reward and Welfare Fund; (ii) ten percent (10%) to
establish the Development Investment Fund. The fund appropriation percentage (%)
may be changed in accordance with a proposal of the Board of Directors to be
approved by the General Meeting of Shareholders.
Article 37. Fiscal year
The Company’s fiscal year shall begin from the first day of January each
year and shall end on the 31st day of December of the same year. The first fiscal year
shall begin on the Date of Establishment and shall end on the 31st day of December
of the same year, if allowed by Law.
Article 38. Accounting system
1. The accounting system used by the Company shall be Vietnamese
Accounting System (VAS) or another accounting system approved by the Minister
of Finance.
2. The Company shall prepare accounting books in Vietnamese. The
Company will keep the accounting records in accordance with the form of business
operations in which the Company shall be is engaged. These records must be
accurate, updated, systematic and sufficient to prove and explain the transactions of
the Company.
3. The Company uses the Vietnamese dong as the official currency in
accounting
XV. ANNUAL REPORTS, RESPONSIBILITY FOR INFORMATION
DISCLOSURE AND PUBLIC ANNOUNCEMENT
Article 39. Annual, semi-annual and quarterly financial statements
1. The Company must prepare an annual financial statement in
accordance with the provisions of the Law as well as those of the State Securities
Commission and such statement must be audited in accordance with Article 41 of this
Charter, and within 90 days from the date of ending each fiscal year, must submit
50
annual financial statements which have been approved by the General Meeting of
Shareholders to the competent taxation authority, the State Securities Commission,
the Stock Exchange and the business registration authority.
2. The annual financial statements must include reports on the results of
business and production activities which reflect honestly and objectively the profit
and loss situation of the Company in the fiscal year and a Balance Sheet which
reflects honestly and objectively the activities of the Company up to date of preparing
such report. A cash flow statement and explanatory notes to the financial statements.
If the Company is a parent company, the annual financial statement must also contain
the separate financial report of the Company and a consolidated financial statement
on the operation of the Company and its subsidiaries at the end of each fiscal year.
3. The Company must formulate and publish semi-annual and quarterly
reports in accordance with the regulations of the State Securities Commission and the
Stock Exchange and submit them to the relevant taxation authority and the business
registration authority in accordance with the Law on Enterprises.
4. Audited financial statements (including the auditor’s opinions) and
semi-annual and quarterly reports of the Company must be posted on the Company’s
website.
5. Interested organizations or individuals shall be entitled to examine or
copy the audited annual financial statements and the semi-annual and quarterly
reports during the working hours of the Company at the head office of the Company,
and shall be required to pay a reasonable amount of copying fees.
Article 40. Information Disclosure and public announcement
The information disclosure and public announcement of the Company shall be
conducted in accordance with the Law.
XVI. COMPANY AUDIT
Article 41. Auditing
1. At the annual meeting of the General Meeting of Shareholders shall
appoint an independent auditing company of shall approve the list of independent
auditing companies and authorize the Board of Directors to decide to select one of
such companies to conduct the Company audit for the next fiscal year on the basis of
the terms and conditions as agreed with the Board of Directors.
The independent auditing company performing the Company audit must be
approved by the State Securities Commission.
2. The Company must prepare and submit an annual financial statement
to the independent auditing company after the end of each fiscal year.
3. The independent auditing company shall inspect, certify and make a
report on the annual financial statements which reflects the income and expenditure
of the Company, and shall prepare an audit report and submit the same to the Board
of Directors within two (02) months from the end of a fiscal year.
51
4. A copy of the audit report must be sent with the annual financial
statement of the Company.
5. The representative of the independent auditing company providing
audit service to the Company shall be invited to attend all meetings of the General
Meeting of Shareholders and shall be entitled to receive notifications and other
information relating to any meeting of the General Meeting of Shareholders where
any Shareholder has the right to receive and also has the right to express his or her
opinions at the General Meeting of Shareholders regarding audit-related matters.
XVII. SEAL
Article 42. Seal
1. The Board of Directors shall make a decision on approving the official
seal of the Company.
2. The Board of Directors, the General Director shall use and manage the
seal in accordance with Law and the Regulations on Corporate Governance.
XVIII. TERMINATION OF OPERATION AND LIQUIDATION
Article 43. Termination of operation
1. The Company may be dissolved or terminated in the following cases:
a. The Operation Term of the Company expires, including after extension.
b. A competent court of Vietnam declares the Company bankrupt in
accordance with the applicable Law;
c. The Company shall be early dissolved as decided by the General
Meeting of Shareholders.
d. Other cases as stipulated by Law.
2. The early dissolution of the Company (including any extended period)
shall be decided by the General Meeting of Shareholders and shall be implemented
by the Board of Directors. The decision on dissolution must be notified to, or must
be approved by (if so required) the competent body in accordance with the
regulations.
Article 44. Cases of Deadlock between members of the Board of Directors
and Shareholders
The Shareholders holding half of the outstanding shares with voting rights
in the election of members of the Board of Directors shall have the right to lodge an
application to a Court for dissolution based on one or more of the following grounds:
1. Members of the Board of Directors failed to reach a consensus on
management of the Company which results in their failure to obtain the required
number of votes for their acts.
2. Due to the Shareholders’ failure to agree, the required number of votes
cannot be obtained in order to proceed with election of Members of the Board of
Directors.
52
3. There is an internal disagreement within the Company and two or more
factions of Shareholders are divided so that dissolution is the option in the best
interests of all the Shareholders.
Article 45. Extension of Operation Term
1. The Board of Directors shall convene a meeting of the General Meeting
of Shareholders at least seven (7) months before the expiry of the Operation Term in
order to enable the Shareholders to vote on the extension of the Company’s Operation
Term at the request of the Board of Directors.
2. The Operation Term shall be extended when it is approved by sixty five
percent (65%) or more of the total votes of the Shareholders with voting rights at the
General Meeting of Shareholders and remote votes.
Article 46. Liquidation
1. At least six (06) months before the expiry of the Operation Term or
after a decision to dissolve the Company, the Board of Directors must establish a
Liquidation Committee consisting of three (03) members. Two (02) of these members
shall be appointed by the General Meeting of Shareholders and one (01) shall be
appointed by the Board of Directors from an independent auditing company. The
Liquidation Committee shall formulate its own operational regulations. The members
of the Liquidation Committee may be selected from the Company’s employees or
independent experts. All expenses relating to liquidation shall be paid by the
Company in priority to the Company’s other debts.
2. The Liquidation Committee shall be responsible to report its dates of
establishment and commencement of operation to the business registration authority.
From such point of time, the Liquidation Committee will represent the Company in
all work relating to the liquidation before a Court and the administrative authorities.
3. Proceeds from the liquidation shall be disbursed in the following order:
a. Expenses of liquidation;
b. Wages and insurance costs for employees;
c. Taxes and other items paid to the State;
d. Loans (if any);
e. Other debts of the Company;
f. After all the debts from (a) to (e) above have been paid, the balance
shall be distributed to Shareholders. Payment of the preferential shares shall be given
priority (if any).
XIX. INTERNAL DISPUTE RESOLUTION
Article 47. Internal dispute resolution
1. When a dispute or complaint relating to the Company work or the
Shareholders’ rights arises out of this Charter or any rights or obligations stipulated
in the Law on Enterprises or the other laws or the administrative regulations, between:
53
a. Shareholder and the Company; or
b. Shareholder and the Board of Directors, the General Director or Other
Enterprise Managers.
The concerned parties will try to resolve such dispute through reconciliation.
Except where such dispute concerning the Board of Directors or the Chairman of the
Board of Directors, such Chairman will preside over any meeting for dispute
resolution and shall require each party to present the actual factors relating to the
dispute within ten (10) working days from the date of the arising. If the conflict
concerns the Board of Directors or the Chairman of the Board, either party may
request appointment of an independent expert who shall act as an arbitrator for the
dispute resolution.
2 If no reconciliation is reached within forty five (45) days from the date
of issuing notice of dispute of a party, then either party may refer the dispute to the
Vietnam International Arbitration Center (“VIAC”) in accordance with its Rules of
Arbitration.
3. Each party will bear its own costs relating to procedures for negotiation
and reconciliation. Payment of the arbitration expenses shall be made in accordance
with the judgment of the arbitration tribunal.
XX.CHARTER SUPPLEMENT AND AMENDMENT
Article 48. Supplement and Amendment of the Charter
Any addition to or amendment of this Charter must be made in the form of a
draft for the approval of the General Meeting of Shareholders at its meeting or by
way of collecting written opinions of at least seventy (75%) of the total number of
votes of the Shareholders with voting rights. Where any legal provision relating to
the Company’s operation has not been mentioned in this Charter or where any new
legal provision is different from the terms of this Charter, such provision of Law shall
automatically apply, and shall govern the Company’s operation.
XXI. EFFECTIVE DATE
Article 49. Effective date
1. This Charter enters into force on 19 April 2019. The content “The
Chairman of the Board of Directors shall not act concurrently as the General
Director of the Company” as stipulated in Article 21.1 of this Charter shall take effect
from 01 August 2020.
2. This Charter is made in ten (10) copies of equal validity, of which:
a. One (01) copy shall be submitted to the local Public Notary Office.
b. Five (05) copies shall be registered with an authority in accordance with
the regulations of the People’s Committee of Ho Chi Minh City.
c. Four (04) copies shall be filed in the office of the Company.
3. This Charter is the unique and official Charter of the Company.
54
4. Copies and extracts of this Charter are valid only when they bear the
signature of the Chairman of the Board of Directors or the signature of at least half
of the total number of members of the Board of Directors.
Article 50. Signature of the General Director
(Signed)
Name and surname: Mai Kieu Lien
